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Blasphemy, insult and hatred:

finding answers in a democratic society


Science and technique of democracy, No. 47

Venice Commission

Council of Europe Publishing


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Contents

Foreword
Simona Granata-Menghini ................................................................... 7
I. Report by the Venice Commission .......................................... 9
The relationship between freedom of expression
and freedom of religion: the issue of regulation and prosecution
of blasphemy, religious insult and incitement to religious hatred .............. 11
1. Introduction ................................................................................. 11
2. Applicable international standards ................................................. 13
3. National legislation on blasphemy, religious insults and inciting
religious hatred ............................................................................ 18 3

4. General remarks .......................................................................... 22


5. Conclusions ................................................................................. 32
II. Council of Europe texts on respect for others culture
and beliefs ............................................................................... 35
European Commission against Racism and Intolerance: General Policy
Recommendation No. 7 on National legislation to combat racism
and racial discrimination (adopted on 13 December 2002) ................... 37
Parliamentary Assembly of the Council of Europe: Resolution 1510
(2006) Freedom of expression and respect for religious beliefs ............... 57
Parliamentary Assembly of the Council of Europe: Recommendation 1805
(2007) Blasphemy, religious insults and hate speech against persons on
grounds of their religion ..................................................................... 61
III. Excerpts from reports presented at the international
round-table conference on Art and Sacred Beliefs:
from Collision to Co-existence ............................................... 67
1. Art and Sacred Beliefs: from Collision to Co-existence
Gianni Buquicchio ........................................................................ 69
Blasphemy, insult and hatred

2. Art and religious beliefs: the limits of liberalism


Nicos C. Alivizatos ...................................................................... 73
3. An ethics of responsibility for artists
Boualem Bessaih .......................................................................... 77
4. Art can legitimately offend
Dimitris Christopoulos and Dimitri Dimoulis ...................................... 83
5. Whose responsibility? The case of Iran
Karim Lahidji ............................................................................... 91
6. The intersection between freedom of expression
and freedom of belief: the position of the United Nations
Ariranga G. Pillay ........................................................................ 97
7. Blasphemy in the Greek Orthodox legal tradition
Dimitris Sarafianos ..................................................................... 105
8. Blasphemy and justice in a Greek Orthodox context
Michael Tsapogas ....................................................................... 113
9. Conflicts between fundamental rights: contrasting views on Articles 9
and 10 of the European Convention on Human Rights
4
Franoise Tulkens ........................................................................ 121
10. Reshaping religion and religious criticism in ultramodernity
Jean-Paul Willaime ................................................................... 133
11. Conclusions
Pieter van Dijk ........................................................................... 143
IV. Appendices to the Report by the Venice Commission ........ 147
Appendix I: Collection of European national laws on blasphemy,
religious insult and incitement to religious hatred.................................. 149
Summary table ............................................................................... 149
Albania .......................................................................................... 151
Andorra .......................................................................................... 151
Armenia ......................................................................................... 152
Austria............................................................................................. 152
Azerbaijan ..................................................................................... 153
Belgium ......................................................................................... 154
Bosnia and Herzegovina ................................................................... 156
Bulgaria ......................................................................................... 157
Croatia. ........................................................................................... 159
Cyprus............................................................................................. 159
Contents

Czech Republic ................................................................................ 161


Denmark ........................................................................................ 162
Estonia .......................................................................................... 163
Finland ........................................................................................... 164
France. ............................................................................................ 164
Georgia ......................................................................................... 172
Germany ....................................................................................... 174
Greece. .......................................................................................... 176
Hungary ........................................................................................ 178
Iceland. .......................................................................................... 179
Ireland............................................................................................. 180
Italy.... ............................................................................................ 182
Latvia. ............................................................................................ 184
Liechtenstein ................................................................................... 185
Lithuania ......................................................................................... 187
Luxembourg .................................................................................... 190
Malta ............................................................................................ 193
Moldova ........................................................................................ 194 5
Monaco ......................................................................................... 195
Montenegro .................................................................................... 197
The Netherlands ............................................................................. 198
Norway ......................................................................................... 201
Poland ........................................................................................... 202
Portugal ......................................................................................... 203
Romania ........................................................................................ 204
Russian Federation .......................................................................... 206
San Marino .................................................................................... 208
Serbia ........................................................................................... 209
Slovakia ......................................................................................... 209
Slovenia ......................................................................................... 210
Spain.... ......................................................................................... 212
Sweden ......................................................................................... 214
Switzerland .................................................................................... 215
The former Yugoslav Republic of Macedonia ................................... 216
Turkey ............................................................................................ 217
Ukraine .......................................................................................... 219
Blasphemy, insult and hatred

United Kingdom .............................................................................. 222


Appendix II: Analysis of domestic laws on blasphemy, religious insult
and inciting religious hatred, on the basis of replies to a questionnaire .. 229
Questionnaire ................................................................................. 229
Albania ......................................................................................... 231
Austria ........................................................................................... 234
Belgium ......................................................................................... 241
Denmark ........................................................................................ 246
France ........................................................................................... 260
Greece .......................................................................................... 269
Ireland ........................................................................................... 273
The Netherlands ............................................................................. 279
Poland ........................................................................................... 288
Romania ........................................................................................ 299
Turkey ............................................................................................ 304
United Kingdom .............................................................................. 306

6
Foreword

Todays Europe is a large space where opportunities for intercultural exchanges


multiply and the potential for cultural enrichment develops constantly, even as
we strive to consolidate our common values. Will we take these chances? Or
will we retreat into our traditional identities, out of fear of assimilation? Will
diversity really become the asset we claim it is, or will it engender xenophobia
and ignorance? Will intolerance and violence give way to acceptance and
open-mindedness?
The Council of Europes European Commission for Democracy through Law (the
Venice Commission) reflected on these matters when dealing with a request
from the Parliamentary Assembly to look into the issue of the regulation and
prosecution of blasphemy, religious insult and incitement to hatred.
7
The Venice Commission thus brainstormed with intellectuals, politicians and the
civil society. In its report on freedom of expression and freedom of religion, it
strove to propose a new ethic of responsible intercultural relations an attitude
that starts by acknowledging that it is not always others who are the intolerant
ones: each and every one of us is often intolerant too.
Section I of this publication is that Report of the Venice Commission, on The rela-
tionship between freedom of expression and freedom of religion: the issue of reg-
ulation and prosecution of blasphemy, religious insult and incitement to religious
hatred, which was adopted by the Venice Commission at its 76th Plenary Session
(17-18 October 2008).
Section II contains three documents from the Council of Europe: General Policy
Recommendation No. 7 of the European Commission Against Racism and Intol-
erance (ECRI) on national legislation to combat racism and racial discrimination,
from 2002, which sets out the fundamental principles which inspired the Venice
Commissions report; Resolution 1510 of the Parliamentary Assembly on freedom
of expression and respect for religious beliefs, from 2006; and the Assemblys
Recommendation 1805 on blasphemy, religious insults and hate speech against
persons on grounds of their religion, from 2007.
Section III has some interesting reports that were presented at the international round-
table conference on Art and Sacred Beliefs: from Collision to Co-existence, which
Blasphemy, insult and hatred

the Venice Commission organised in Athens on 31 January and 1 February 2008,


in co-operation with the Hellenic League of Human Rights.
Finally, Section IV consists of the two appendices to the Report of the Venice
Commission. Appendix 1 collects together European national laws on blas-
phemy, religious insult and incitement to religious hatred; Appendix 2 analyses
domestic laws on blasphemy, religious insult and inciting religious hatred in
various countries, on the basis of replies to a questionnaire.
Taken together, these documents help Europe to face the dilemma of getting
strong opinions to live with genuine tolerance. They show how we can live with
other peoples beliefs without sacrificing our own.

Simona Granata-Menghini
Head of the Constitutional Co-operation Division, Venice Commission

8
I. Report by the Venice Commission
Adopted by the Venice Commission at its 76th Plenary Session
(Venice, 17-18 October 2008)
The relationship between freedom of expression
and freedom of religion: the issue of regulation
and prosecution of blasphemy, religious insult
and incitement to religious hatred

1. Introduction
1. In its Resolution 1510 (2006) on Freedom of expression and respect for
religious beliefs,1 the Parliamentary Assembly of the Council of Europe addressed
the question of whether and to what extent respect for religious beliefs should
limit freedom of expression. It expressed the view that freedom of expression
should not be further restricted to meet increasing sensitivities of certain religious
groups, but underlined that hate speech against any religious group was incom-
patible with the European Convention on Human Rights. The Assembly resolved
to revert to this issue on the basis of a report on legislation relating to blasphemy,
religious insults and hate speech against persons on grounds of their religion,
after taking stock of the different approaches in Europe, including the report and 11

recommendations of the Venice Commission.

2. By a letter of 11 October 2006, the Secretariat of the Parliamentary Assembly,


on behalf of Mrs Sinikka Hurskainen, Rapporteur of the Committee on Culture,
Science and Education on this matter, requested the Venice Commission to pre-
pare an overview of national law and practice concerning blasphemy and related
offences with a religious aspect in Europe.

3. A working group was promptly set up within the Venice Commission, composed
of Mr Pieter van Dijk (member, the Netherlands), Ms Finola Flanagan (member,
Ireland) and Ms Hanna Suchocka (member, Poland). Mr Louis-Lon Christians,
Professor at Louvain University, Belgium, was invited to join the group as an expert
and to collect the domestic provisions relating to blasphemy, religious insults and
incitement to hatred of the Council of Europes member states. Mr Christians pre-
liminary report was submitted to the Venice Commission in December 2006; it
was subsequently supplemented and updated, where necessary, by the commis-
sion members, and finalised by the Secretariat (CDL-AD(2008)026add). It collects
the legal provisions which are in force in all Council of Europe member states, and
contains some references to the relevant case law of the national courts.

1. Adopted by the Parliamentary Assembly on 28 June 2006 (19th sitting).


Blasphemy, insult and hatred

4. A preliminary discussion of the request submitted to the Venice Commission


took place at the meeting of the Sub-commission on Fundamental Rights, held in
Venice on 13 December 2006. At this meeting, in the light of the impossibility,
under the applicable time constraints, of gathering exhaustive information on the
practice and case law of all Council of Europe member states, it was decided
to send a more detailed questionnaire to selected countries to obtain some indi-
cation of current trends and problems in Europe, and related legal practices.
The questionnaire was sent to twelve states (Albania, Austria, Belgium, Den-
mark, France, Greece, Ireland, the Netherlands, Poland, Romania, Turkey, the
United Kingdom). Appendix II (CDL-AD(2008)026add2 page 229) contains
the replies received from these twelve states.

5. The working group also relied on the material and information collected
by the Committee of Experts for the Development of Human Rights (DH-DEV)
relating to national legislation on hate speech.2

6. The working group exchanged information with the above Committee of Experts
as well as with the Secretariat of the European Commission against Racism and
Intolerance (ECRI).3 It wishes to thank them for the fruitful co-operation.

7. A preliminary report was discussed at the meeting of the Sub-Commission on


12
Fundamental Rights on 15 March 2007 and was subsequently adopted by the
Commission at its 70th Plenary Session (Venice, 16-17 March 2007). This pre-
liminary report was subsequently sent to the Parliamentary Assembly.

8. On 29 June 2007, the Parliamentary Assembly adopted Recommendation 1805


(2007) on blasphemy, religious insults and hate speech against persons on grounds
of their religion, which contains references to the commissions preliminary report.

9. The commission subsequently organised, in co-operation with the Hellenic


League of Human Rights, an international round-table conference on Art and
Sacred Beliefs: from Collision to Co-existence, which took place in Athens on
31 January and 1 February 2008. At this conference, which gathered law-
yers, artists, journalists, MPs and representatives of civil society, the intersec-
tion between freedom of expression and freedom of religion was extensively
discussed, with a view to proposing constructive solutions to the conflicts which
have been occurring in recent times.

10. The present report was discussed and adopted by the commission at its
76th Plenary Session (Venice, 17-18 October 2008).

2. GT-DH-DV A(2006)008 Addendum, Human Rights in a Multicultural Society: compilation of the


replies received from the member states to the questionnaire on hate speech. This information covers
37 countries.
3. www.coe.int/T/e/human_rights/ecri/1-ECRI.
The relationship between freedom of expression and freedom of religion

2. Applicable international standards4


11. Article 9 of the European Convention on Human Rights (ECHR) provides
that:
1. Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest ones religion or beliefs shall be subject only to such limita-
tions as are prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health or morals, or the
protection of the rights and freedoms of others.

12. Article 10 of the ECHR provides that:


1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interfer-
ence by public authority and regardless of frontiers. This article shall not prevent
states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are pre-
scribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the reputation or the rights
of others, for preventing the disclosure of information received in confidence, or for 13
maintaining the authority and impartiality of the judiciary.

13. Article 14 of the ECHR provides that:


The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.

14. Article 1 of Protocol 12 to the ECHR provides that:


1. The enjoyment of any right set forth by law shall be secured without discrimin-
ation on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property,
birth or other status.
2. No one shall be discriminated against by any public authority on any ground
such as those mentioned in paragraph 1.

15. The Additional Protocol to the Convention on cybercrime, concerning the


criminalisation of acts of a racist and xenophobic nature committed through
computer systems, provides that:
Article 3 Dissemination of racist and xenophobic material through computer
systems

4. For a full review of relevant international standards, see: Anne Weber, Handbook on Hate Speech,
Council of Europe Publishing, Strasbourg, October 2009.
Blasphemy, insult and hatred

1. Each Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences under its domestic law, when committed intention-
ally and without right, the following conduct:

distributing, or otherwise making available, racist and xenophobic material to


the public through a computer system.

2. A Party may reserve the right not to attach criminal liability to conduct as
defined by paragraph 1 of this article, where the material, as defined in Article 2,
paragraph 1, advocates, promotes or incites discrimination that is not associated
with hatred or violence, provided that other effective remedies are available.

3. Notwithstanding paragraph 2 of this article, a Party may reserve the right not to
apply paragraph 1 to those cases of discrimination for which, due to established
principles in its national legal system concerning freedom of expression, it cannot
provide for effective remedies as referred to in the said paragraph 2.
Article 4 Racist and xenophobic motivated threat

Each Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed intentionally
and without right, the following conduct:

threatening, through a computer system, with the commission of a serious crim-


inal offence as defined under its domestic law, (i) persons for the reason that
they belong to a group, distinguished by race, colour, descent or national or
ethnic origin, as well as religion, if used as a pretext for any of these factors,
14
or (ii) a group of persons which is distinguished by any of these characteristics.

Article 5 Racist and xenophobic motivated insult

1. Each Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences under its domestic law, when committed intention-
ally and without right, the following conduct:

insulting publicly, through a computer system, (i) persons for the reason that they
belong to a group distinguished by race, colour, descent or national or ethnic ori-
gin, as well as religion, if used as a pretext for any of these factors; or (ii) a group
of persons which is distinguished by any of these characteristics.

2. A Party may either:

a. require that the offence referred to in paragraph 1 of this article has the effect
that the person or group of persons referred to in paragraph 1 is exposed to hatred,
contempt or ridicule; or

b. reserve the right not to apply, in whole or in part, paragraph 1 of this article.

Article 6 Denial, gross minimisation, approval or justification of genocide or


crimes against humanity

1. Each Party shall adopt such legislative measures as may be necessary to estab-
lish the following conduct as criminal offences under its domestic law, when com-
mitted intentionally and without right:

distributing or otherwise making available, through a computer system to the


public, material which denies, grossly minimises, approves or justifies acts
The relationship between freedom of expression and freedom of religion

constituting genocide or crimes against humanity, as defined by international


law and recognised as such by final and binding decisions of the International
Military Tribunal, established by the London Agreement of 8 August 1945, or
of any other international court established by relevant international instruments
and whose jurisdiction is recognised by that Party.

2. A Party may either

a. require that the denial or the gross minimisation referred to in paragraph 1 of


this article is committed with the intent to incite hatred, discrimination or violence
against any individual or group of individuals, based on race, colour, descent or
national or ethnic origin, as well as religion if used as a pretext for any of these
factors, or otherwise

b. reserve the right not to apply, in whole or in part, paragraph 1 of this article.

16. Article 20.2 of the United Nations International Covenant on Civil and
Political Rights provides that:
every kind of propaganda for national, racial or religious hatred, which constitutes
incitement to discrimination, hostility or violence must be prohibited by law.

17. Article 4 of the 1965 International Convention on the Elimination of All


Forms of Racial Discrimination calls upon states party to it to
declare an offence punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as all acts of vio-
15
lence or incitement to such acts against any race or group of persons of another
colour or ethnic origin, and also the provision of any assistance to racist activities,
including the financing thereof.

18. Recommendation No. R (1997) 20 on Hate Speech5 of the Committee of


Ministers of the Council of Europe contains the following relevant principles:
Principle 2

The governments of the member states should establish or maintain a sound


legal framework consisting of civil, criminal and administrative law provi-
sions on hate speech which enable administrative and judicial authorities
to reconcile in each case respect for freedom of expression with respect for
human dignity and the protection of the reputation or the rights of others. To
this end, governments of member states should examine ways and means to:

stimulate and co-ordinate research on the effectiveness of existing legislation


and legal practice;

review the existing legal framework in order to ensure that it applies in an


adequate manner to the various new media and communications services and
networks;

develop a co-ordinated prosecution policy based on national guidelines


respecting the principles set out in this recommendation;

5. Adopted by the Committee of Ministers on 30 October 1997 at the 607th meeting of the
Ministers Deputies.
Blasphemy, insult and hatred

add community service orders to the range of possible penal sanctions;

enhance the possibilities of combating hate speech through civil law, for
example by allowing interested non-governmental organisations to bring civil
law actions, providing for compensation for victims of hate speech and provid-
ing for the possibility of court orders allowing victims a right of reply or order-
ing retraction;

provide public and media professionals with information on legal provisions


which apply to hate speech.

Principle 3

The governments of the member states should ensure that in the legal framework
referred to in Principle 2, interferences with freedom of expression are narrowly
circumscribed and applied in a lawful and non-arbitrary manner on the basis of
objective criteria. Moreover, in accordance with the fundamental requirement of the
rule of law, any limitation of, or interference with, freedom of expression must be
subject to independent judicial control. This requirement is particularly important in
cases where freedom of expression must be reconciled with respect for human dig-
nity and the protection of the reputation or the rights of others.

Principle 4

National law and practice should allow the courts to bear in mind that specific
16
instances of hate speech may be so insulting to individuals or groups as not to
enjoy the level of protection afforded by Article 10 of the European Convention on
Human Rights to other forms of expression. This is the case where hate speech is
aimed at the destruction of the rights and freedoms laid down in the Convention or
at their limitation to a greater extent than provided therein.

Principle 5

National law and practice should allow the competent prosecution authorities to
give special attention, as far as their discretion permits, to cases involving hate
speech. In this regard, these authorities should, in particular, give careful consid-
eration to the suspects right to freedom of expression given that the imposition of
criminal sanctions generally constitutes a serious interference with that freedom. The
competent courts should, when imposing criminal sanctions on persons convicted
of hate speech offences, ensure strict respect for the principle of proportionality.

Principle 6

National law and practice in the area of hate speech should take due account
of the role of the media in communicating information and ideas which
expose, analyse and explain specific instances of hate speech and the under-
lying phenomenon in general as well as the right of the public to receive such
information and ideas. To this end, national law and practice should distin-
guish clearly between the responsibility of the author of expressions of hate
speech, on the one hand, and any responsibility of the media and media pro-
fessionals contributing to their dissemination as part of their mission to commu-
nicate information and ideas on matters of public interest on the other hand.
The relationship between freedom of expression and freedom of religion

Principle 7
In furtherance of Principle 6, national law and practice should take account of the
fact that:
reporting on racism, xenophobia, anti-Semitism or other forms of intolerance
is fully protected by Article 10, paragraph 1, of the European Convention on
Human Rights and may only be interfered with under the conditions set out in
paragraph 2 of that provision;
the standards applied by national authorities for assessing the necessity of
restricting freedom of expression must be in conformity with the principles
embodied in Article 10, as established in the case law of the Conventions
organs, having regard, inter alia, to the manner, content, context and purpose
of the reporting;
respect for journalistic freedoms also implies that it is not for the courts or the
public authorities to impose their views on the media as to the types of reporting
techniques to be adopted by journalists.

19. The Council of Europes European Commission against Racism and Intoler-
ance (ECRI), in its general policy recommendation No. 7,6 makes, inter alia, the
following recommendations on domestic criminal legislation:
I. Definitions
1. For the purposes of this Recommendation, the following definitions shall apply:
a. racism shall mean the belief that a ground such as race, colour, language, 17

religion, nationality or national or ethnic origin justifies contempt for a person


or a group of persons, or the notion of superiority of a person or a group of
persons.

II. Constitutional law
2. The constitution should enshrine the principle of equal treatment, the commit-
ment of the State to promote equality as well as the right of individuals to be free
from discrimination on grounds such as race, colour, language, religion, national-
ity or national or ethnic origin. The constitution may provide that exceptions to the
principle of equal treatment may be established by law, provided that they do not
constitute discrimination.

IV. Criminal law

18. The law should penalise the following acts when committed intentionally:
a. public incitement to violence, hatred or discrimination,

6. ECRI General Policy Recommendation No. 7 on national legislation to combat racism and
racial discrimination, adopted by the ECRI on 13 December 2002, found at www.coe.int/t/e/
human_rights/ecri/1-ecri/3-general_themes/1-policy_recommendations/recommendation_n7/
3-Recommendation_7.asp.
Blasphemy, insult and hatred

b. public insults and defamation or


c. threats against a person or a grouping of persons on the grounds of their race,
colour, language, religion, nationality, or national or ethnic origin;
d. the public expression, with a racist aim, of an ideology which claims the super-
iority of, or which depreciates or denigrates, a grouping of persons on the grounds
of their race, colour, language, religion, nationality, or national or ethnic origin;
e. the public denial, trivialisation, justification or condoning, with a racist aim, of
crimes of genocide, crimes against humanity or war crimes;
f. the public dissemination or public distribution, or the production or storage aimed
at public dissemination or public distribution, with a racist aim, of written, pictorial
or other material containing manifestations covered by paragraphs 18 a, b, c, d
and e;
23. The law should provide for effective, proportionate and dissuasive sanctions for
the offences set out in paragraph 18 . The law should also provide for ancillary
or alternative sanctions .

20. The Committee of Ministers Declaration on freedom of political debate in


the media, adopted in February 2004, holds that defamation or insult by the
media should not lead to prosecution, unless the seriousness of the violation of
the rights or reputation of others makes it a strictly necessary and proportionate
penalty, especially where other fundamental rights have been seriously violated
18
through defamatory or insulting statements in the media, such as hate speech
(emphasis added).7

21. In its Recommendation 1805 (2007) on blasphemy, religious insults and


hate speech against persons on grounds of their religion, the Parliamentary
Assembly of the Council of Europe considers that national law should only
penalise expressions about religious matters which intentionally and severely
disturb public order and call for public violence.8

3. National legislation on blasphemy, religious insults


and inciting religious hatred
22. The Venice Commission collected the criminal law provisions of Council of
Europe member states relating to blasphemy, religious insults and incitement to reli-
gious hatred.9 This information is contained in document CDL-AD(2008)026add

7. The criminalisation of defamation on the ground of race, colour, language, religion, nationality, or
national or ethnic origin recommended by the ECRI does not conflict with the modern trends towards
decriminalisation of defamation, which concerns more particularly the cases of criticism of politicians
and other public figures.
8. Assembly debate on 29 June 2007, recommendation adopted by the Assembly on 29 June 2007.
See also Res(2006)1510 on Freedom of expression and respect for religious beliefs, adopted by the
Assembly on 28 June 2006. See also the statement of the Human Rights Commissioner: Do not crim-
inalise critical remarks against religions, of 11 June 2007, available at the commissioners website
at www.commissioner.coe.int.
9. The criminal legislation of several states also imposes limitations on the freedom of association and
assembly with a view to preventing hate speech.
The relationship between freedom of expression and freedom of religion

(see Appendix I, p. 149). The commission also sought more specific and detailed
information about the legislation and legal practice in a selected number of mem-
ber states (Albania, Austria, Belgium, Denmark, France, Greece, Ireland, the
Netherlands, Poland, Romania, Turkey and the United Kingdom); this information
is contained in document CDL-AD(2008)026add2. The commissions analysis, set
out hereinafter (see Appendix II, p. 229), is based on this information.
23. Most states penalise the disturbance of religious practice (for instance, the
interruption of religious ceremonies).

Blasphemy
24. Blasphemy is an offence in only a minority of member states (Austria,
Denmark, Finland, Greece, Italy, Liechtenstein, the Netherlands, San Marino).10
It must be noted in this context that there is no single definition of blasphemy.
In the Merriam-Webster Dictionary, blasphemy is defined as: 1: the act of insult-
ing or showing contempt or lack of reverence for God b: the act of claiming
the attributes of deity; 2: irreverence toward something considered sacred or
inviolable. According to the Committee on Culture, Science and Education, in
their report on blasphemy, religious insults and hate speech against persons on
grounds of their religion,11 blasphemy can be defined as the offence of insulting
or showing contempt or lack of reverence for God and, by extension, towards
anything considered sacred. The Irish Law Reform Commission suggested a
19
legal definition of blasphemy as Matter the sole effect of which is likely to
cause outrage to a substantial number of adherents of any religion by virtue of
its insulting content concerning matters held sacred by that religion.12
25. The penalty incurred for blasphemy is generally a term of imprisonment
(mostly, up to three, four or six months; up to two years in Greece for malicious
blasphemy) or a fine.
26. The offence of blasphemy is, nowadays, rarely prosecuted in European
states.

Religious insult
27. Religious insult is a criminal offence in about half the member states (Andorra,
Cyprus, Croatia, the Czech Republic, Denmark, Spain, Finland, Germany,13
Greece, Iceland, Italy, Lithuania, Norway,14 the Netherlands, Poland, Portu-
gal, Russian Federation, Slovak Republic, Switzerland, Turkey and Ukraine),

10. The introduction of the criminal offence of blasphemy is being discussed in Ireland in order to
implement Article 40 paragraph 6.1(I) of the Constitution.
11. Doc. 11296, 8 June 2007.
12. There exist several other definitions: see Angela Evenhuis, Blasphemous Matter: Blasphemy, Defa-
mation of Religion and Human Rights, Magenta Foundation, 2008, p. 8.
13. In Germany it is a condition that the offender has disturbed the public peace for the offence to
materialise. Similarly, in Portugal the offender is required to have breached the peace.
14. Prosecution of religious insults is only done when it is in the public interest to do so.
Blasphemy, insult and hatred

whereas insult as such is generally considered as a criminal or administrative


offence in all countries.
28. Although there is no general definition of religious insult, the relevant Euro-
pean provisions appear to cover the different concepts (often at the same time)
of insult based on belonging to a particular religion and insult to religious
feelings.
29. The penalty incurred is generally a term of imprisonment, varying signifi-
cantly amongst member states and ranging from a few months (four or six) to
one, two, three and even five years (in Ukraine). A pecuniary fine is always an
alternative to imprisonment.

Negationism
30. Negationism, in the sense of public denial of historic crimes is an offence in
a few countries (Austria, Belgium, France, Switzerland). In other countries such
as Germany, certain activity amounting to negationism may come within the
definition of the offence of incitement to hatred.

Discrimination
31. Discriminatory treatment of various kinds, including on religious grounds, is
20 prohibited at constitutional level in all Council of Europe member states. Some
states also have specific laws or provisions against such discrimination.
32. In some countries, the commission of any crime with an ethnic, racial, reli-
gious or similar motive constitutes a general aggravating circumstance (for
example in France, Georgia, Italy, Luxembourg, Sweden, Spain and Ukraine).
In some countries, certain specific crimes (for instance, murder) are aggravated
by a racial or similar motive (as in Belgium, France, Georgia and Portugal).

Incitement to hatred
33. Practically all Council of Europe member states (except for Andorra and San
Marino) provide for an offence of incitement to hatred.15 However, in some of

15. There is no generally recognised definition of incitement to hatred or hate speech. The
Committee of Ministers, in its Recommendation No. R (1997) 20, provides the following working
definition: the term hate speech shall be understood as covering all forms of expression which
spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred
based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism,
discrimination and hostility against minorities, migrants and people of immigrant origin. The Euro-
pean Court of Human Rights referred to all forms of expression which spread, incite, promote or just-
ify hatred based on intolerance (including religious intolerance) in its Gunduz v. Turkey judgment of
4 December 2003, paragraph 40. Hate speech is not a so-called hate crime. Hate crimes always
comprise two elements: 1) a criminal offence committed with 2) a bias motive. As speech would not
be a crime without the bias motive, it lacks the first essential element of hate crimes. However, direct
and immediate incitement to criminal acts is prohibited in all member states: in those countries where
what is penalised is not incitement to hatred as such, but incitement to violent acts or through violent
acts, such incitement would qualify as a hate crime. General and specific penalty enhancements
The relationship between freedom of expression and freedom of religion

these countries (among them Austria, Cyprus,16 Greece, Italy17 and Portugal) the
law punishes incitement to acts likely to create discrimination or violence, not
incitement to mere hatred. In some states (like Lithuania), the law penalises both
(but incitement to violence carries more severe penalties).

34. In most member states, the treatment of incitement to religious hatred is a


subset of incitement to general hatred, the term hatred generally covering
racial, national and religious hatred in the same manner,18 but at times also
hatred on the ground of sex or sexual orientation, political convictions, lan-
guage, social status or physical or mental disability. In Georgia, Malta, Slovakia
and the former Yugoslav Republic of Macedonia, religion is not specifically
foreseen as a ground for hatred.

35. In several states (among them Armenia, Bosnia and Herzegovina, Latvia,
Montenegro, Serbia, Slovenia, Ukraine), the fact that the incitement to hatred
has been committed through or has actually provoked violence, constitutes
an aggravating circumstance.

36. In the majority of member states (with the exception of Albania, Estonia,
Malta, Moldova, Montenegro, the Netherlands, Poland, Serbia, Slovenia and
Ukraine and the United Kingdom, but with the exception of ones private
dwelling), the incitement to hatred must occur in public. In Armenia and France,
the fact that the incitement is committed in public represents an aggravating 21

circumstance.

37. In Austria and Germany, the incitement to hatred must disturb the public
order in order for it to become an offence. In Turkey, it must clearly and directly
endanger the public.

38. Some states provide for specific, more stringent or severe provisions relating
to incitement to hatred through the mass media (such as Armenia, Azerbaijan,
Czech Republic, Romania).

(see para. 32 above) also qualify as hate crime legislation. See OSCE/ODIHR Hate Crime Laws:
A Practical Guide, available at www.osce.org/item/36671.html?ch=1263.
16. In Cyprus, incitement to acts which are likely to cause discrimination, hatred or violence is
penalised.
17. In Italy, the law distinguishes between incitement to commit discriminatory acts and incitement to
commit violent acts.
18. In General Policy Recommendation No. 7, the ECRI uses racism to mean the belief that a
ground such as race, colour, language, religion, nationality or national or ethnic origin justifies con-
tempt for a person or a group of persons, or the notion of superiority of a person or a group of per-
sons; The ECRI uses direct racial discrimination to mean any differential treatment based on a
ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no
objective and reasonable justification. It must also be noted that the judges in Strasbourg have stated
that no difference in treatment which is based exclusively or to a decisive extent on a persons eth-
nic origin is capable of being objectively justified in a contemporary democratic society built on the
principles of pluralism and respect for different cultures. (European Court of Human Rights, Timishev
v. Russia judgment of 13 December 2005 [final on 13 March 2006], paragraph 58).
Blasphemy, insult and hatred

39. The intention to stir up hatred is generally not a necessary element of the
offence, but it is so in Cyprus, Ireland, Malta, Portugal, Ukraine and England
and Wales. In some member states, recklessness is taken into account too. In
Ireland, for example, it is a defence for the accused to prove not to have
intended to stir up hatred or not to have intended or not to have been aware
that the words, behaviour or material concerned might be threatening, abusive
or insulting. In Italy, the words, behaviour or material in question must stir up,
or be intended to stir up, or be likely to stir up hatred. In Norway, the offence
of incitement to hatred may be committed willingly or through gross negligence.

40. The maximum prison sentence incurred for incitement to hatred varies
significantly (from one year to ten years) among member states:19 one year
(Belgium, France, the Netherlands); eighteen months (Malta); two years
(Austria, Cyprus, Czech Republic, Denmark, Georgia, Iceland, Ireland, Lithuania,
Slovenia, Sweden); three years (Azerbaijan, Bulgaria, Croatia, Estonia, Hungary,
Italy, Latvia, Moldova, Norway, Poland, Slovakia, Spain, Turkey); four years
(Armenia); five years (Bosnia and Herzegovina, Germany, Monaco, Montene-
gro, Portugal, Serbia, the former Yugoslav Republic of Macedonia, Ukraine);
ten years (Albania). In all countries, a prison term is alternative to or cumulative
with a pecuniary fine.

22 4. General remarks
Scope of the reflection
41. The Parliamentary Assembly requested an overview of the legislation of the
Council of Europe member states in regard to religious offences in the context of
reciprocal limitations of freedom of expression and freedom of religion.

42. The following questions arise:


Is there a need for specific supplementary legislation in this area?
To what extent is criminal legislation adequate and/or effective for the pur-
pose of bringing about the appropriate balance between the right to free-
dom of expression and the right to respect for ones beliefs?
Are there alternatives to criminal sanctions?

Criminal legislation as a basis for interference with freedom of expression


43. Freedom of expression, guaranteed by Article 10 of the European Conven-
tion on Human Rights (ECHR), constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and for each
individuals self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable
not only to information or ideas that are favourably received, or regarded

19. Information on penalties is not available for all states.


The relationship between freedom of expression and freedom of religion

as inoffensive or as a matter of indifference, but also to those that offend, shock


or disturb.20

44. A democracy should not fear debate, even on the most shocking or anti-
democratic ideas. It is through open discussion that these ideas should be coun-
tered and the supremacy of democratic values be demonstrated. Mutual under-
standing and respect can only be achieved through open debate. Persuasion
through open public debate, as opposed to ban or repression, is the most demo-
cratic means of preserving fundamental values.

45. Article 10.2 of the ECHR provides for the possibility of imposing formalities,
conditions, restrictions or penalties on freedom of expression, as are prescribed
by law and are necessary in a democratic society in pursuit of specifically listed
legitimate interests.

46. In the commissions view, however, in a true democracy, imposing limita-


tions on freedom of expression should not be used as a means of preserving
society from dissenting views, even if they are extreme. Ensuring and protecting
open public debate should be the primary means of protecting inalienable fun-
damental values like freedom of expression and religion at the same time as pro-
tecting society and individuals against discrimination. It is only the publication or
utterance of those ideas that are fundamentally incompatible with a democratic
regime because they incite to hatred that should be prohibited.
23

47. Measures and acts to ensure respect for the religious beliefs of others pur-
sue the aims of protection of the rights and freedoms of others and protect-
ing public order and safety. These aims can justify restrictions on the right to
freedom of expression.21 Indeed, the European Court of Human Rights has held
that, in order to ensure religious peace, states have an obligation to avoid as
far as possible expressions that are gratuitously offensive to others and thus an
infringement of their rights, and which therefore do not contribute to any form
of public debate capable of furthering progress in human affairs.22 Respect for
the religious feelings of believers can legitimately be thought to have been vio-
lated by provocative portrayals of objects of religious veneration or offensive
attacks on religious principles and dogmas; these may in certain circumstances
be regarded as malicious violation of the spirit of tolerance, which must also be
a feature of a democratic society.23

48. There is a view that, to the extent that religious beliefs concern a persons
relation with the metaphysical, they can affect the most intimate feelings and

20. European Court of Human Rights, Giniewski v. France, judgment of 31 January 2006,
paragraph 43.
21. See, inter alia, European Court of Human Rights, Murphy v. Ireland, judgment of 10 July 2003,
paragraph 64.
22. European Court of Human Rights, Otto-Preminger-Institut v. Austria, judgment of 20 Septem-
ber1994, paragraph 56.
23. Ibid., paragraph 47.
Blasphemy, insult and hatred

may be so complex that an attack on them might cause a disproportionately


severe shock. In this respect, it is argued that they differ from other beliefs, such
as political or philosophical beliefs, and it is argued that they deserve a higher
degree of protection.24

49. At any rate, the concepts of pluralism, tolerance and broadmindedness


on which any democratic society is based mean that the responsibility that is
implied in the right to freedom of expression does not, as such, mean that an
individual is to be protected from exposure to a religious view simply because it
is not his or her own.25 The purpose of any restriction on freedom of expression
must be to protect individuals holding specific beliefs or opinions, rather than to
protect belief systems from criticism. The right to freedom of expression implies
that it should be allowed to scrutinise, openly debate and criticise, even harshly
and unreasonably, belief systems, opinions and institutions, as long as this does
not amount to advocating hatred against an individual or groups.

50. Restrictions on the right to freedom of expression must be made in accord-


ance with the law. The nature and quality of the domestic legislation are there-
fore important, and so are the interpretation and application of the law, which
depend on practice. Domestic law is interpreted and applied by domestic
courts, which therefore play a vital role in bringing about the balance of interests
and deciding whether an interference with the right to freedom of expression is
24
necessary in a democratic society, and notably whether it is proportionate to the
legitimate aims pursued.

51. Member states enjoy a certain, but not unlimited, margin of appreciation in
that respect. The absence of a uniform European concept of the requirements of
the protection of the rights of others in relation to attacks on religious convictions
broadens the contracting states margin of appreciation when regulating free-
dom of expression in relation to matters liable to offend intimate personal convic-
tions within the sphere of morals or religion.26 What is likely to cause substantial
offence to persons of a particular religious persuasion will vary significantly from
time to time and from place to place, especially in an era characterised by an
ever growing array of faiths and denominations: state authorities are therefore
better placed than the international judge to appreciate what is necessary in a
democratic society.27

52. When looking into the extent of permissible restrictions on freedom of


expression, the commission stresses that a distinction can be drawn between, on
the one hand, works of art (in whatever form, such as painting, sculpture, instal-
lation, music, including pop music, theatre, cinema, books or poetry), and, on

24. See contribution by N. Alivizatos, Art and religion: the limits of liberalism, on p. 73.
25. European Court of Human Rights, Murphy v. Ireland, judgment of 10 July 2003, paragraph 72.
26. European Court of Human Rights, Giniewski v. France, judgment of 31 January 2006, para-
graph 44; Aydin Tatlav v. Turkey, judgment of 2 May 2006, paragraphs 26, 27.
27. European Court of Human Rights, Murphy v. Ireland, judgment of 10 July 2003, paragraph 67.
The relationship between freedom of expression and freedom of religion

the other hand, statements or publications expressing an opinion (for instance,


speech that is audible in public, journalism, public speaking or television/radio
debate). However, a work of art may contain political comment, and an osten-
sibly political expression may also be or become accepted as art. In respect
of both forms of expression, therefore, restrictions will only be possible if they
cause an undue interference in a guaranteed right of another person or group
as per Article 17 of the ECHR, having regard to the permissible limitations in
Article 10.2 of the ECHR.

53. Before proceeding with the analysis of the forms of interference with free-
dom of expression, the commission wishes to underline that what it may be
necessary to limit in a democratic society is not the freedom of artistic or intel-
lectual or other expression in itself, but the manner and extent of circulation of
the intellectual or artistic product (the ideas expressed, the work of art created,
the book or articles written, the cartoon drawn and so on). This explains why it
is, at least theoretically, possible to hold accountable for incitement to hatred or
religious insults not only and not even primarily the author of a statement or work
of art, but also those who have directly or indirectly contributed to the circulation
of such statement or work of art: a publisher, an editor, a broadcaster, a journal-
ist, an art dealer, an artistic director or a museum manager.

54. There exist several forms of sanction of freedom of expression,28 including:


25
administrative fines;
civil law remedies, including liability for damages;
restraints on publication of periodicals, magazines, newspapers or books,
or on art exhibitions; or criminal sanctions, both fines and imprisonment.

55. Criminal sanctions related to unlawful forms of expression which impinge


on the right to respect for ones beliefs, which are specifically the object of this
report, should be seen as last resort measures to be applied in strictly justifi-
able situations, when no other means appears capable of achieving the desired
protection of individual rights in the public interest.

56. It is beyond doubt that hate speech towards members of other groups includ-
ing religious groups is in contradiction with the Conventions underlying values,
notably tolerance, social peace and non-discrimination. Consequently, the author
of hate speech may not benefit from the protection afforded by Article 10 of the
Convention. This arises by virtue of Article 17 of the Convention, which provides
that:

Nothing in [the] Convention may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the

28. Similarly, freedom of assembly and association may be restricted in order to protect the rights
of others.
Blasphemy, insult and hatred

destruction of any of the rights and freedoms set forth herein or at their limitation to
a greater extent than is provided for in the Convention.29

No one is allowed to abuse his or her right to freedom of expression to destroy


or unduly diminish the right to respect for the religious beliefs of others.

57. Hate speech thus justifies criminal sanctions. Indeed, the pan-European intro-
duction of sanctions against incitement to hatred has a very strong symbolic value,
which goes beyond the objective difficulty of defining and prosecuting the crime of
incitement to hatred. This trend is in accordance with General Policy Recommen-
dation No. 7 on national legislation to combat racism and racial discrimination,
produced by the European Commission against Racism and Intolerance (ECRI).
Similarly, the European Court of Human Rights has stated:
as a matter of principle it may be considered necessary in certain democratic
societies to sanction or even prevent all forms of expression which spread, incite,
promote or justify hatred based on intolerance (including religious intolerance), pro-
vided that any formalities, conditions, restrictions or penalties imposed are
proportionate to the legitimate aim pursued.30

58. The application of hate legislation must be measured in order to avoid an


outcome where restrictions, which potentially aim at protecting minorities against
abuses, extremism or racism, have the perverse effect of muzzling opposition
26
and dissenting voices, silencing minorities and reinforcing the dominant political,
social and moral discourse and ideology.

59. The need for specific criminal legislation prohibiting blasphemy and religious
insults is more controversial. There are two opposite views on this: one advocat-
ing the repeal of legislation on blasphemy and religious insult altogether; and
one advocating introduction of the offence of religious insult or even the specific
offence of incitement to religious hatred.

60. In this respect, it is worth recalling that it is often argued that there is an
essential difference between racist insults and insults on the ground of belonging
to a given religion: whereas race is inherited and unchangeable, religion is not,
and is instead based on beliefs and values that the believer will tend to hold as
the only truth. This difference has prompted some to conclude that a wider scope

29. See European Court of Human Rights, Pavel Ivanov v. Russia, dec. 20 February 2007; see also
Gnduz v. Turkey, judgment of 14 December 2003, paragraph 41, where the Court states that
Furthermore, as the Court noted in Jersild v. Denmark (judgment of 23 September 1994, Series A
No. 298, p. 5, paragraph 35), there can be no doubt that concrete expressions constituting hate
speech, which may be insulting to particular individuals or groups, are not protected by Article 10
of the Convention. In the case of Norwood v. the United Kingdom, the Court stated that a general,
vehement attack against a religious group, linking the group as a whole with a grave act of terrorism,
is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance,
social peace and non-discrimination (Norwood v. the UK (dec.), No. 23131/03, 16 Novem-
ber 2004). See also European Court of Human Rights, Garaudy v. France, dec. 24 June 2003, and
Lawless v. Ireland, judgment of 1 July 1961, Series A No. 3, p. 45, paragraph 7.
30. European Court of Human Rights, Gunduz v. Turkey, judgment of 14 December 2003,
paragraph 40.
The relationship between freedom of expression and freedom of religion

of criticism is acceptable in respect of a religion than in respect of a race. This


argument presupposes that, while ideas of superiority of a race are unaccept-
able, ideas of superiority of a religion are acceptable, because it is possible for
the believer of the inferior religion to refuse to follow some ideas and even to
switch to the superior religion.

61. In the commissions opinion, this argument is convincing only insofar as


genuine discussion is concerned, but it should not be used to stretch unduly the
boundaries between genuine philosophical discussion about religious ideas
and gratuitous religious insults against a believer of an inferior faith. On the
other hand, it cannot be forgotten that international instruments and most domes-
tic legislation put race and religion on an equal footing as forbidden grounds for
discrimination and intolerance.

62. The Parliamentary Assembly noting that, in the past, national law and
practice concerning blasphemy and other religious offences often reflected the
dominant position of particular religions in individual states has considered
that in view of the greater diversity of religious beliefs in Europe and the demo-
cratic principle of the separation of state and religion, blasphemy laws should be
reviewed by member states and parliaments and that blasphemy, as an insult
to a religion, should not be deemed a criminal offence. A distinction should be
made between matters relating to moral conscience and those relating to what is
lawful, and between matters which belong to the public domain and those which 27

belong to the private sphere.31

63. The commission agrees with this view.

64. The commission does not consider it necessary or desirable to create an


offence of religious insult (that is, insult to religious feelings) simpliciter, without
the element of incitement to hatred as an essential component.32 Neither does
the commission consider it essential to impose criminal sanctions for an insult
based on belonging to a particular religion.33 If a statement or work of art does
not qualify as incitement to hatred, then it should not be the object of criminal
sanctions.

31. Parliamentary Assembly of the Council of Europe, Recommendation 1805 (2007) on blasphemy,
religious insults and hate speech against persons on grounds of their religion.
32. This finding does not appear to comply fully with UN Human Rights Council Resolution 7/19 of
27 March 2007 on Defamation of religion, which reads as follows: [the Human Rights Council]
also urges States to provide, within their respective legal and constitutional systems, adequate protec-
tion against acts of hatred, discrimination, intimidation and coercion resulting from the defamation
of any religion, to take all possible measures to promote tolerance and respect for all religions and
their value systems and to complement legal systems with intellectual and moral strategies to combat
religious hatred and intolerance.
33. In its General Policy Recommendation No. 7, the ECRI recommends that public insults and defam-
ation against a person or a grouping of persons on the grounds of their race, colour, language,
religion, nationality, or national or ethnic origin be penalised. The commission recalls in this respect
that the offences of insult and defamation exist in every member state and can be used, subject to
all the relevant legal conditions, also in cases of public insults and defamation on religious grounds.
Blasphemy, insult and hatred

65. It is true that penalising insult to religious feelings could give a powerful
signal to everyone, both potential victims and potential perpetrators, that gra-
tuitously offensive statements and publications are not tolerated in an effective
democracy.

66. On the other hand, the commission reiterates that recourse to criminal law,
which should of itself be reserved in principle to cases when no other remedy
appears effective, should only take place with extreme caution in the area of
freedom of expression.

67. In addition, one has to be aware of certain difficulties with enforcement of


criminal legislation in this area. The intention of the accused speaker or author,
the effects of his or her action and the political, social or scientific context in
which the contested statements or publications are made constitute elements that
may be problematic to evaluate and balance for the prosecuting authorities and
the courts. For this reason or for reasons of opportunity within the discretion-
ary powers of the prosecuting authorities, new, specific legislation might raise
expectations concerning prosecution and conviction that will not be met. More-
over, too activist an attitude on the part of the latter authorities may place the
suspect persons or groups in the position of underdog, and provide them and
their goal with propaganda and public support (the role of martyrs).

28 68. It is true that the boundaries between insult to religious feelings (even blas-
phemy) and hate speech are easily blurred, so that the dividing line, in an insult-
ing speech, between the expression of ideas and the incitement to hatred is often
difficult to identify. This problem, however, should be solved through an appro-
priate interpretation of the notion of incitement to hatred rather than through the
punishment of insult to religious feelings.

69. When it comes to statements, certain elements should be taken into consid-
eration in deciding if a given statement constitutes an insult or amounts to hate
speech: the context in which it is made; the public to which it is addressed;
whether the statement was made by a person in his or her official capacity,
in particular if this person carries out particular functions. For example, with
respect to a politician, the Strasbourg Court has underlined that it is of crucial
importance that politicians in their public speeches refrain from making any
statement which can provoke intolerance.34 This call on responsible behaviour
does not, of itself, unduly limit the freedom of political speech, which enjoys a
reinforced protection under Article 10 of the ECHR.35 On the other hand, how-
ever, it has to be pointed out that, in most legal systems, politicians enjoy certain
immunities for their official statements.

70. As concerns the context, a factor which is relevant is whether the statement
(or work of art) was circulated in a restricted environment or widely accessible

34. European Court of Human Rights, Erbakan v. Turkey, judgment of 6 July 2006, paragraph 64.
35. European Court of Human Rights, Incal v. Turkey, judgment of 9 June 1998, paragraph 46.
The relationship between freedom of expression and freedom of religion

to the general public, whether it was made in a closed place accessible with
tickets or exposed in a public area. The circumstance that it was, for example,
disseminated through the media bears particular importance, in the light of the
potential impact of the medium concerned. It is worth noting in this respect that
it is commonly acknowledged that the audiovisual media have often a much
more immediate and powerful effect than the print media; the audiovisual media
have means of conveying, through images, meanings which the print media are
not able to impart.36

71. The commission notes in addition that circumstances as regards publication


have changed since the arrival of the Internet. It is now possible to communicate
instantly to a vast number of people in the world at large. Therefore, the power
to incite to hatred is far greater than in pre-Internet days. Furthermore, publica-
tion is now much less in the control of the author or publisher, who may find it
impossible to limit publication in the manner he or she would have originally
intended.

72. As concerns the content, the Venice Commission wishes to underline that
in a democratic society, religious groups must tolerate, as other groups must,
critical public statements and debate about their activities, teachings and beliefs,
provided that such criticism does not amount to incitement to hatred and does
not constitute incitement to disturb the public peace or to discriminate against
adherents of a particular religion. 29

73. Having said so, the Venice Commission does not support absolute liber-
alism. While there is no doubt that in a democracy all ideas, even though
shocking or disturbing, should in principle be protected (with the exception, as
explained above, of those inciting hatred), it is equally true that not all ideas
deserve to be circulated. Since the exercise of freedom of expression carries
duties and responsibilities, it is legitimate to expect from every member of a
democratic society to avoid, as far as possible, wordings that express scorn or
are gratuitously offensive to others and infringe their rights.

74. It should also be accepted that when ideas which, to use the formula used
by the Strasbourg Court, do not contribute to any form of public debate cap-
able of furthering progress in human affairs37 cause damage, it must be pos-
sible to hold whoever expressed them responsible. Instead of criminal sanctions,
which in the Venice Commissions view are only appropriate to prevent incite-
ment to hatred, the existing causes of action should be used, including the pos-
sibility of claiming damages from the authors of these statements. This conclusion
does not prevent the recourse, as appropriate, to other criminal law offences,
notably public order offences.

36. European Court of Human Rights, Jersild v. Denmark, judgment of 23 September 1994,
paragraph 31.
37. European Court of Human Rights, Otto-Preminger-Institut v. Austria, judgment of 20 Septem-
ber 1994, paragraph 49.
Blasphemy, insult and hatred

75. Whether damage has been suffered and, if so, the extent of such damage,
is for the courts to determine (including the matter of whether the action is pos-
sibly barred by parliamentary immunity). Courts are well placed to enforce rules
of law in relation to these issues and to take into account the facts of each situa-
tion; they must reflect public opinion in their decisions, or the latter risk not being
understood and accepted, and to lack legitimisation.
76. The Venice Commission underlines, however, that it must be possible to criti-
cise religious ideas, even if such criticism may be perceived by some as hurting
their religious feelings. Awards of damages should be carefully and strictly justi-
fied and motivated, and should be proportional, lest they should have a chilling
effect on freedom of expression.
77. It is also worth recalling that an insult to a principle or a dogma, or to a
representative of a religion, does not necessarily amount to an insult to an indi-
vidual who believes in that religion. The European Court of Human Rights has
made clear that an attack on a representative of a church does not automatically
discredit and disparage a sector of the population on account of their faith in the
relevant religion,38 and that criticism of a doctrine does not necessarily contain
attacks on religious beliefs as such.39 The difference between group libel and
individual libel should be carefully taken into consideration.

30
78. A legitimate concern which arises in this respect is that only the religious
beliefs or convictions of some would be given protection. It might be so on
account of their belonging to the religious majority or to a powerful religious
minority, or their being recognised as a religious group. It might also be the case
on account of the vehemence of their reactions to insults: a reasonable fear of
uncontrollable reactions could lead to specific caution in respect of Muslims, for
example.
79. In different societies it can indeed be observed that there are different sen-
sitivities which affect the interpretation of, in the past, the offences of blasphemy
and religious insult and, nowadays, the offence of incitement to hatred.
80. Certain individuals have undoubtedly shown increasing sensitivities in this
regard and reacted violently to criticism of their religion. The commission accepts
that, in the short term, these sensitivities may be taken into due account by the
national authorities when, in order to protect the rights of others and to preserve
social peace and public order, they are to decide whether or not a restriction to
freedom of expression is to be imposed and implemented.
81. It must be stressed, however, that democratic societies must not become host-
age to these sensitivities, and freedom of expression must not indiscriminately
retreat when facing violent reactions. The threshold of sensitivity of certain

38. European Court of Human Rights, Klein v. Slovakia, judgment of 31 October 2006, paragraph 51.
39. European Court of Human Rights, Giniewski v. France, judgment of 31 January 2006,
paragraph 51.
The relationship between freedom of expression and freedom of religion

individuals may be too low in certain specific circumstances, and incidents may
even happen in places other than, and far away from, those where the original
issue arose, and this should not become of itself a reason to prevent any form
of discussion on religious matters involving that particular religion: the right to
freedom of expression in a democratic society would otherwise be jeopardised.

82. The commission considers that any difference in the application of restric-
tions to freedom of expression with a view to protecting specific religious beliefs
or convictions (including as regards the position of a religious group as victim as
opposed to perpetrator) should either be avoided or duly justified.

83. A responsible exercise of the right to freedom of expression should endeav-


our to respect the right to respect for religious beliefs or convictions of others.
In this and other areas, sensible self-censorship could help to strike a balance
between freedom of expression and ethical behaviour. Refraining from uttering
certain statements can be perfectly acceptable when it is done in order not to
hurt gratuitously the feelings of other persons, whereas it is obviously unaccept-
able when it is done out of fear of violent reactions.

84. As important as the role of the courts may be in deciding whether a state-
ment amounted to incitement to hatred or whether damages are incurred, the
commission is of the opinion that the relationship between freedom of expression
31
and freedom of religion should not per se be regulated through court rulings,
but, first and foremost, through rational consultation between people, believers
and non-believers.40

85. For this reason, the recommendations of the Parliamentary Assembly of the
Council of Europe, the ECRI and many others as to the need to promote dialogue
and encourage an ethic of communication for both the media and religious
groups should be taken up with urgency. Education leading to better under-
standing of the convictions of others and to tolerance should also be seen as an
essential tool in this respect.

86. In the long term, every member of a democratic society should be able to
express in a peaceful manner his or her ideas, no matter how negative, on other
faiths or beliefs or dogmas. Constructive debates should take place as opposed
to dialogues of the deaf.

87. Mutual understanding and acceptance is perhaps the main challenge of


modern societies. Diversity is undoubtedly an asset; but cohabiting with people
of different backgrounds and ideas entails the need for everyone to refrain from
gratuitous provocation and insults. In the end of the day, it is the price to pay
for a new ethics of responsible intercultural relations in Europe and in the world.

40. See contribution by D. Christopoulos and D. Dimoulis, Art can legitimately offend, on p. 83.
Blasphemy, insult and hatred

5. Conclusions
88. The Venice Commission has examined the European legislation on blas-
phemy, religious insult and incitement to religious hatred, and has extensively
reflected on this matter, including at the international round-table conference on
Art and Sacred Beliefs: from Collision to Co-existence, which was held in Athens
on 31 January and 1 February 2008. The commission has reached the follow-
ing conclusions.
89. As concerns the question of whether or not there is a need for specific sup-
plementary legislation in the area of blasphemy, religious insult and incitement
to religious hatred, the commission finds:
a. That incitement to hatred, including religious hatred, should be the object of
criminal sanctions as is the case in almost all European states, with the exception
only of Andorra and San Marino. The latter two states should criminalise incite-
ment to hatred, including religious hatred. In the commissions view, it would
be appropriate to introduce an explicit requirement of intention or recklessness,
which only a few states provide for.
b. That it is neither necessary nor desirable to create an offence of religious
insult (that is, insult to religious feelings) simpliciter, without the element of incite-
ment to hatred as an essential component.
32
c. That the offence of blasphemy should be abolished (which is already the case
in most European states) and should not be reintroduced.
90. As concerns the question of to what extent criminal legislation is adequate
and/or effective for the purpose of bringing about the appropriate balance
between the right to freedom of expression and the right to respect for ones
beliefs, the commission reiterates that, in its view, criminal sanctions are only
appropriate in respect of incitement to hatred (unless public order offences are
appropriate).
91. Notwithstanding the difficulties with enforcement of criminal legislation in
this area, there is a high symbolic value in the pan-European introduction of
criminal sanctions against incitement to hatred. It gives strong signals to all
parts of society and to all societies that an effective democracy cannot bear
behaviours and acts that undermine its core values: pluralism, tolerance, respect
for human rights and non-discrimination. The application of legislation against
incitement to hatred must be done in a non-discriminatory manner.
92. In the commissions view, instead, criminal sanctions are inappropriate in
respect of insult to religious feelings and, even more so, in respect of blasphemy.
93. Finally, as concerns the question of whether there are alternative options
to criminal sanctions, the commission recalls that any legal system provides for
other courses of action, which can be used in cases other than incitement to
hatred.
The relationship between freedom of expression and freedom of religion

94. However, as is the case with other problems of society, it is not exclusively
or even primarily for the courts to find the right balance between freedom of reli-
gion and freedom of expression, but rather for society at large, through rational
discussions between all parts of society, including believers and non-believers.
95. A new ethic of responsible intercultural relations in Europe and in the rest
of the world is made necessary by the cultural diversity in modern societies and
requires that a responsible exercise of the right to freedom of expression should
endeavour to respect the religious beliefs and convictions of others. Self-restraint,
in this and other areas, can help, provided of course that it is not prompted by
fear of violent reactions, but only by ethical behaviour.
96. This does not mean, however, that democratic societies must become hos-
tage to the excessive sensitivities of certain individuals: freedom of expression
must not indiscriminately retreat when facing violent reactions.
97. The level of tolerance of these individuals, and of anyone who would
feel offended by the legitimate exercise of the right to freedom of expres-
sion, should be raised. A democracy must not fear debate, even on the most
shocking or anti-democratic ideas. It is through open discussion that these
ideas should be countered and the supremacy of democratic values be demon-
strated. Mutual understanding and respect can only be achieved through open
debate. Persuasion, as opposed to ban or repression, is the most democratic
means of preserving fundamental values. 33

98. For this reason, in the commissions opinion, the recommendations of the
Parliamentary Assembly of the Council of Europe, the ECRI and many others as
to the need to promote dialogue and encourage a communication ethic for both
the media and religious groups should be taken up by way of urgency. Educa-
tion leading to better understanding of the convictions of others and to tolerance
should also be seen as an essential tool in this respect.
II. Council of Europe texts
on respect for others culture and beliefs
ECRI General Policy Recommendation No. 7
on National legislation to combat racism
and racial discrimination
(adopted on 13 December 2002)41

Preamble41
The European Commission against Racism and Intolerance (ECRI):
Recalling the declaration adopted by the heads of state and government of the
member states of the Council of Europe at their first summit held in Vienna on 8
and 9 October 1993;
Recalling that the plan of action on combating racism, xenophobia, antisemitism
and intolerance set out as part of this declaration invited the Committee of Minis-
ters to establish the European Commission against Racism and Intolerance with
a mandate, inter alia, to formulate general policy recommendations to member
states;
37
Recalling also the Final Declaration and Action Plan adopted by the heads of
state and government of the member states of the Council of Europe at their sec-
ond summit held in Strasbourg on 10-11 October 1997;
Recalling that Article 1 of the Universal Declaration of Human Rights proclaims
that all human beings are born free and equal in dignity and rights;
Having regard to the International Convention on the Elimination of All Forms of
Racial Discrimination;
Having regard to Convention No. 111 of the International Labour Organization
concerning Discrimination (Employment and Occupation);
Having regard to Article 14 of the European Convention on Human Rights;
Having regard to Protocol No. 12 to the European Convention on Human Rights,
which contains a general clause prohibiting discrimination;
Having regard to the case law of the European Court of Human Rights;
Taking into account the Charter of Fundamental Rights of the European Union;
Taking into account Directive 2000/43/EC of the Council of the European Union
implementing the principle of equal treatment between persons irrespective of

41. Published for the ECRI by the Council of Europe, Strasbourg, 2003.
Blasphemy, insult and hatred

racial or ethnic origin, and Directive 2000/78/EC of the Council of the Euro-
pean Union establishing a general framework for equal treatment in employ-
ment and occupation;

Having regard to the Convention on the Prevention and Punishment of the Crime
of Genocide;

Recalling the ECRIs General Policy Recommendation No. 1 on combating


racism, xenophobia, antisemitism and intolerance, and the ECRIs General
Policy Recommendation No. 2 on specialised bodies to combat racism, xeno-
phobia, antisemitism and intolerance at national level;

Stressing that, in its country-by-country reports, the ECRI regularly recommends


to member states the adoption of effective legal measures aimed at combating
racism and racial discrimination;

Recalling that, in the political declaration adopted on 13 October 2000 at the


concluding session of the European Conference against Racism, the governments
of member states of the Council of Europe committed themselves to adopting
and implementing, wherever necessary, national legislation and administra-
tive measures that expressly and specifically counter racism and prohibit racial
discrimination in all spheres of public life;
38 Recalling also the declaration and the programme of action adopted by the World
Conference against Racism, Racial Discrimination, Xenophobia and Related Intol-
erance held in Durban, South Africa, from 31 August to 8 September 2001;

Aware that laws alone are not sufficient to eradicate racism and racial discrim-
ination, but convinced that laws are essential in combating racism and racial
discrimination;

Stressing the vital importance of appropriate legal measures in combating


racism and racial discrimination effectively and in a way which both acts as a
deterrent and, as far as possible, is perceived by the victim as satisfactory;

Convinced that the action of the state legislator against racism and racial dis-
crimination also plays an educative function in society, transmitting the powerful
message that no attempts to legitimise racism and racial discrimination will be
tolerated in a society ruled by law;

Seeking, alongside the other efforts under way at international and European
level, to assist member states in their fight against racism and racial discrim-
ination, by setting out in a succinct and precise manner the key elements to be
included in appropriate national legislation;

Recommends to the governments of member states:


a. to enact legislation against racism and racial discrimination, if such
legislation does not already exist or is incomplete;
Council of Europe texts on respect for others' culture and beliefs

b. to ensure that the key components set out below are included in such
legislation.

Key elements of national legislation against racism


and racial discrimination
I. Definitions
1. For the purposes of this recommendation, the following definitions shall apply:
a. racism shall mean the belief that a ground such as race,42 colour, lan-
guage, religion, nationality or national or ethnic origin justifies contempt for
a person or a group of persons, or the notion of superiority of a person or
a group of persons.
b. direct racial discrimination shall mean any differential treatment
based on a ground such as race, colour, language, religion, nationality or
national or ethnic origin, which has no objective and reasonable justifica-
tion. Differential treatment has no objective and reasonable justification if it
does not pursue a legitimate aim or if there is not a reasonable relationship
of proportionality between the means employed and the aim sought to be
realised.
c. indirect racial discrimination shall mean cases where an apparently
neutral factor such as a provision, criterion or practice cannot be as easily
complied with by, or disadvantages, persons belonging to a group desig- 39

nated by a ground such as race, colour, language, religion, nationality or


national or ethnic origin, unless this factor has an objective and reasonable
justification. This latter would be the case if it pursues a legitimate aim and
if there is a reasonable relationship of proportionality between the means
employed and the aim sought to be realised.

II. Constitutional law


2. The constitution should enshrine the principle of equal treatment, the commit-
ment of the state to promote equality as well as the right of individuals to be free
from discrimination on grounds such as race, colour, language, religion, nation-
ality or national or ethnic origin. The constitution may provide that exceptions to
the principle of equal treatment may be established by law, provided that they
do not constitute discrimination.
3. The constitution should provide that the exercise of freedom of expression,
assembly and association may be restricted with a view to combating racism.
Any such restrictions should be in conformity with the European Convention on
Human Rights.

42. Since all human beings belong to the same species, the ECRI rejects theories based on the exist-
ence of different races. In this recommendation the ECRI uses this term to ensure that those per-
sons generally and erroneously perceived as belonging to another race are not excluded from the
protection given by legislation.
Blasphemy, insult and hatred

III. Civil and administrative law


4. The law should clearly define and prohibit direct and indirect racial
discrimination.
5. The law should provide that the prohibition of racial discrimination does not
prevent the maintenance or adoption of temporary special measures designed
either to prevent or to compensate for disadvantages suffered by persons des-
ignated by the grounds enumerated in paragraph 1.b (henceforth: enumerated
grounds), or to facilitate their full participation in all fields of life. These meas-
ures should not be continued once the intended objectives have been achieved.
6. The law should provide that the following acts, inter alia, are considered as
forms of discrimination: segregation; discrimination by association; announced
intention to discriminate; instructing another to discriminate; inciting another to
discriminate; aiding another to discriminate.
7. The law should provide that the prohibition of discrimination applies to all
public authorities as well as to all natural or legal persons, both in the public
and in the private sectors, in all areas, notably: employment; membership of
professional organisations; education; training; housing; health; social protec-
tion; goods and services intended for the public and public places; exercise of
economic activity; public services.
40
8. The law should place public authorities under a duty to promote equality and
to prevent discrimination in carrying out their functions.
9. The law should place public authorities under a duty to ensure that those par-
ties to whom they award contracts, loans, grants or other benefits respect and
promote a policy of non-discrimination. In particular, the law should provide
that public authorities should subject the awarding of contracts, loans, grants or
other benefits to the condition that a policy of non-discrimination be respected
and promoted by the other party. The law should provide that the violation of
such condition may result in termination of the contract, grant or other benefits.
10. The law should ensure that easily accessible judicial and/or administrative
proceedings, including conciliation procedures, are available to all victims of dis-
crimination. In urgent cases, fast-track procedures, leading to interim decisions,
should be available to victims of discrimination.
11. The law should provide that, if persons who consider themselves wronged
because of a discriminatory act establish before a court or any other compe-
tent authority facts from which it may be presumed that there has been direct
or indirect discrimination, it shall be for the respondent to prove that there has
been no discrimination.
12. The law should provide for effective, proportionate and dissuasive sanctions
for discrimination cases. Such sanctions should include the payment of compen-
sation for both material and moral damages to the victims.
Council of Europe texts on respect for others' culture and beliefs

13. The law should provide the necessary legal tools to review, on an ongoing
basis, conformity with the prohibition of discrimination in all laws, regulations
and administrative provisions at national and local levels. Laws, regulations and
administrative provisions found not to be in conformity with the prohibition of
discrimination should be amended or abrogated.
14. The law should provide that discriminatory provisions included in individual
or collective contracts or agreements, internal regulations of enterprises, rules
governing profit-making or non-profit-making associations, and rules governing
the independent professions and workers and employers organisations should
be amended or declared null and void.
15. The law should provide that harassment related to one of the enumerated
grounds is prohibited.
16. The law should provide for an obligation to suppress public financing of
organisations which promote racism. Where a system of public financing of
political parties is in place, such an obligation should include the suppression of
public financing of political parties which promote racism.
17. The law should provide for the possibility of dissolution of organisations
which promote racism.

IV. Criminal law


41
18. The law should penalise the following acts when committed intentionally:
a. public incitement to violence, hatred or discrimination,
b. public insults and defamation or
c. threats against a person or a grouping of persons on the grounds of their
race, colour, language, religion, nationality, or national or ethnic origin;
d. the public expression, with a racist aim, of an ideology which claims
the superiority of, or which depreciates or denigrates, a grouping of per-
sons on the grounds of their race, colour, language, religion, nationality, or
national or ethnic origin;
e. the public denial, trivialisation, justification or condoning, with a racist
aim, of crimes of genocide, crimes against humanity or war crimes;
f. the public dissemination or public distribution, or the production or stor-
age aimed at public dissemination or public distribution, with a racist aim,
of written, pictorial or other material containing manifestations covered by
paragraphs 18a, b, c, d and e;
g. the creation or the leadership of a group which promotes racism; sup-
port for such a group; and participation in its activities with the intention of
contributing to the offences covered by paragraph 18a, b, c, d, e and f;
h. racial discrimination in the exercise of ones public office or occupation.
19. The law should penalise genocide.
Blasphemy, insult and hatred

20. The law should provide that intentionally instigating, aiding, abetting or
attempting to commit any of the criminal offences covered by paragraphs 18
and 19 is punishable.

21. The law should provide that, for all criminal offences not specified in para-
graphs 18 and 19, racist motivation constitutes an aggravating circumstance.

22. The law should provide that legal persons are held responsible under crim-
inal law for the offences set out in paragraphs 18, 19, 20 and 21.

23. The law should provide for effective, proportionate and dissuasive sanctions
for the offences set out in paragraphs 18, 19, 20 and 21. The law should also
provide for ancillary or alternative sanctions.

V. Common provisions

24. The law should provide for the establishment of an independent specialised
body to combat racism and racial discrimination at national level (henceforth:
national specialised body). The law should include within the competence of
such a body: assistance to victims; investigation powers; the right to initiate, and
participate in, court proceedings; monitoring legislation and advice to legisla-
42
tive and executive authorities; awareness-raising of issues of racism and racial
discrimination among society and promotion of policies and practices to ensure
equal treatment.

25. The law should provide that organisations such as associations, trade unions
and other legal entities which have, according to the criteria laid down by the
national law, a legitimate interest in combating racism and racial discrimination,
are entitled to bring civil cases, intervene in administrative cases or make crim-
inal complaints, even if a specific victim is not referred to. If a specific victim is
referred to, it should be necessary for that victims consent to be obtained.

26. The law should guarantee free legal aid and, where necessary, a court-
appointed lawyer, for victims who wish to go before the courts as applicants or
plaintiffs and who do not have the necessary means to do so. If necessary, an
interpreter should be provided free of charge.

27. The law should provide protection against any retaliatory measures for per-
sons claiming to be victims of racial offences or racial discrimination, persons
reporting such acts or persons providing evidence.

28. The law should provide for one or more independent bodies entrusted with
the investigation of alleged acts of discrimination committed by members of the
police, border control officials, members of the army and prison personnel.
Council of Europe texts on respect for others' culture and beliefs

Explanatory memorandum to ECRI General Policy


Recommendation No. 7 on National legislation to combat racism
and racial discrimination
Introduction
1. This general policy recommendation (hereafter: the Recommendation) focuses
on the key elements of national legislation to combat racism and racial discrim-
ination. Although the ECRI is aware that legal means alone are not sufficient to
this end, it believes that national legislation against racism and racial discrimina-
tion is necessary to combat these phenomena effectively.
2. In the framework of its country-by-country approach, the ECRI regularly
recommends to member states of the Council of Europe the adoption of effec-
tive legal measures aimed at combating racism and racial discrimination. The
Recommendation aims to provide an overview of these measures and to clar-
ify and complement the recommendations formulated in this respect in the
ECRIs country-by-country reports. The Recommendation also aims to reflect
the general principles contained in the international instruments mentioned in
the Preamble.
3. The ECRI believes that appropriate legislation to combat racism and racial dis-
crimination should include provisions in all branches of the law, that is, constitu-
tional, civil, administrative and criminal law. Only such an integrated approach 43
will enable member states to address these problems in a manner which is as
exhaustive, effective and satisfactory from the point of view of the victim as
possible. In the field of combating racism and racial discrimination, civil and
administrative law often provides for flexible legal means, which may facilitate
the victims recourse to legal action. Criminal law has a symbolic effect which
raises the awareness of society of the seriousness of racism and racial discrim-
ination and has a strong dissuasive effect, provided it is implemented effectively.
The ECRI has taken into account the fact that the possibilities offered by the
different branches of the law are complementary. As regards in particular the
fight against racial discrimination, the ECRI recommends that the member states
of the Council of Europe adopt constitutional, civil and administrative law provi-
sions, and that, in certain cases, they additionally adopt criminal law provisions.
4. The legal measures necessary to combat racism and racial discrimination
at national level are presented in the form of key components which should be
contained in the national legislation of member states. The ECRI stresses that the
measures it recommends are compatible with different legal systems, be they
common law or civil law or mixed. Furthermore, those components that the ECRI
considers to be key to an effective legal framework against racism and racial
discrimination may be adapted to the specific conditions of each country. They
could thus be set out in a single special act or laid out in the different areas of
national legislation (civil law, administrative law and penal law). These key com-
ponents might also be included in broader legislation encompassing the fight
Blasphemy, insult and hatred

against racism and racial discrimination. For example, when adopting legal
measures against discrimination, member states might prohibit, alongside racial
discrimination, other forms of discrimination such as those based on gender, sex-
ual orientation, disability, political or other opinion, social origin, property, birth
or other status. Finally, in a number of fields, member states might simply apply
general rules, which it is therefore not necessary to set out in this Recommenda-
tion. This is the position, for example, in civil law, for multiple liability, vicarious
liability, and for the establishment of levels of damages; in criminal law, for the
conditions of liability, and the sentencing structure; and in procedural matters,
for the organisation and jurisdiction of the courts.

5. In any event, these key components represent only a minimum standard; this
means that they are compatible with legal provisions offering a greater level
of protection adopted, or to be adopted, by a member state and that under no
circumstances should they constitute grounds for a reduction in the level of pro-
tection against racism and racial discrimination already afforded by a member
state.

I. Definitions

Paragraph 1 of the Recommendation


44
6. In the Recommendation, the term racism should be understood in a broad
sense, including phenomena such as xenophobia, antisemitism and intolerance.
As regards the grounds set out in the definitions of racism, and direct and indirect
racial discrimination (paragraph 1 of the Recommendation), in addition to those
grounds generally covered by the relevant legal instruments in the field of com-
bating racism and racial discrimination, such as race, colour and national or
ethnic origin, the Recommendation covers language, religion and nationality.43
The inclusion of these grounds in the definitions of racism and racial discrimina-
tion is based on the ECRIs mandate, which is to combat racism, antisemitism,
xenophobia and intolerance. The ECRI considers that these concepts, which
vary over time, nowadays cover manifestations targeting persons or groups of
persons, on grounds such as race, colour, religion, language, nationality and
national and ethnic origin. As a result, the expressions racism and racial
discrimination used in the Recommendation encompass all the phenomena
covered by the ECRIs mandate. National origin is sometimes interpreted as
including the concept of nationality. However, in order to ensure that this con-
cept is indeed covered, it is expressly included in the list of grounds, in addition
to national origin. The use of the expression grounds such as in the definitions
of racism and direct and indirect racial discrimination aims at establishing an
open-ended list of grounds, thereby allowing it to evolve with society. However,

43. The ECRI understands the term nationality as defined in Article 2a of the European Convention on
Nationality: nationality means the legal bond between a person and a State and does not indicate
the persons ethnic origin.
Council of Europe texts on respect for others' culture and beliefs

in criminal law, an exhaustive list of grounds could be established in order to


respect the principle of forseeability which governs this branch of the law.
7. Unlike the definition of racial discrimination (paragraphs 1b and c of the
Recommendation), which should be included in the law, the definition of racism
is provided for the purposes of the Recommendation, and member states may
or may not decide to define racism within the law. If they decide to do so, they
may, as regards criminal law, adopt a more precise definition than that set out
in paragraph 1a, in order to respect the fundamental principles of this branch
of the law. For racism to have taken place, it is not necessary that one or more
of the grounds listed should constitute the only factor or the determining factor
leading to contempt or the notion of superiority; it suffices that these grounds are
among the factors leading to contempt or the notion of superiority.
8. The definitions of direct and indirect racial discrimination contained in para-
graph 1.b and c of the Recommendation draw inspiration from those contained
in Directive 2000/43/CE of the Council of the European Union, implementing
the principle of equal treatment between persons irrespective of racial or ethnic
origin, and in Directive 2000/78/CE of the Council of the European Union,
establishing a general framework for equal treatment in employment and occu-
pation as well as on the case law of the European Court of Human Rights. In
accordance with this case law, differential treatment constitutes discrimination
if it has no objective and reasonable justification. This principle applies to dif-
45
ferential treatment based on any of the grounds enumerated in the definition
of racial discrimination. However, differential treatment based on race, colour
and ethnic origin may have an objective and reasonable justification only in an
extremely limited number of cases. For instance, in employment, where colour
constitutes a genuine and determining occupational requirement by reason of
the nature of the particular occupational activities concerned or of the context in
which they are carried out, differential treatment based on this ground may have
an objective and reasonable justification. More generally, the notion of objec-
tive and reasonable justification should be interpreted as restrictively as possible
with respect to differential treatment based on any of the enumerated grounds.

II. Constitutional law


9. In the Recommendation, the term constitution should be understood in a
broad sense, including basic laws and written and unwritten basic rules. In
paragraphs 2 and 3, the Recommendation provides for certain principles that
should be contained in the constitution; such principles are to be implemented
by statutory and regulatory provisions.
Paragraph 2 of the Recommendation
10. In paragraph 2, the Recommendation allows for the possibility of providing
in the law for exceptions to the principle of equal treatment, provided that they
do not constitute discrimination. For this condition to be met, in accordance with
Blasphemy, insult and hatred

the definitions of discrimination proposed in paragraph 1b and c of the Recom-


mendation, the exceptions must have an objective and reasonable justification.
This principle applies to all exceptions, including those establishing differential
treatment on the basis of nationality.

Paragraph 3 of the Recommendation


11. According to paragraph 3 of the Recommendation, the constitution should
provide that the exercise of freedom of expression, assembly and association
may be restricted with a view to combating racism. In Articles 10.2 and 11.2,
the European Convention on Human Rights enumerates the aims which may
justify restrictions to these freedoms. Although the fight against racism is not men-
tioned as one of these aims, in its case law the European Court of Human Rights
has considered that it is included. In accordance with the articles of the Con-
vention mentioned above, these restrictions should be prescribed by law and
necessary in a democratic society.

III. Civil and administrative law


Paragraph 4 of the Recommendation
12. The Recommendation provides in paragraph 4 that the law should clearly
46
define and prohibit direct and indirect racial discrimination. It offers a definition
of direct and indirect racial discrimination in paragraph 1b and c. The meaning
of the expression differential treatment is wide and includes any distinction,
exclusion, restriction, preference or omission, be it past, present or potential.
The term ground must include grounds which are actual or presumed. For
instance, if a person experiences adverse treatment due to the presumption that
he or she is a Muslim, when in reality this is not the case, this treatment would
still constitute discrimination on the basis of religion.
13. Discriminatory actions are rarely based solely on one or more of the
enumerated grounds, but are rather based on a combination of these grounds
with other factors. For discrimination to occur, it is therefore sufficient that one of
the enumerated grounds constitutes one of the factors leading to the differential
treatment. Use of restrictive expressions such as difference of treatment solely or
exclusively based on grounds such as should therefore be avoided.

Paragraph 5 of the Recommendation


14. In its paragraph 5, the Recommendation provides for the possibility of
temporary special measures designed either to prevent or compensate for dis-
advantages suffered by persons designated by the enumerated grounds, or to
facilitate their full participation in all fields of life. As an example of temporary
special measures designed to prevent or compensate for disadvantages linked
to the enumerated grounds: a factory owner who has no black employees
among his managerial staff but many black employees on the assembly line
Council of Europe texts on respect for others' culture and beliefs

might organise a training course for black workers seeking promotion. As an


example of temporary special measures designed to facilitate the full partici-
pation, in all fields of life, of persons designated by the enumerated grounds:
the police could organise a recruitment campaign designed to encourage
applications particularly from members of certain ethnic groups who are
under-represented within the police.

Paragraph 6 of the Recommendation

15. The Recommendation specifically mentions in paragraph 6 certain acts


which should be considered by law as forms of discrimination. In theory, the
application of the general legal principles and the definition of discrimination
should enable these acts to be covered. However, practice demonstrates that
these acts often tend to be overlooked or excluded from the scope of appli-
cation of the legislation. For reasons of effectiveness, it may therefore be use-
ful for the law to provide expressly that these acts are considered as forms of
discrimination.

16. Among the acts which the Recommendation mentions specifically as forms
of discrimination, the following warrant a brief explanation:
a. Segregation is the act by which a (natural or legal) person separates
other persons on the basis of one of the enumerated grounds without an
47
objective and reasonable justification, in conformity with the proposed def-
inition of discrimination. As a result, the voluntary act of separating oneself
from other persons on the basis of one of the enumerated grounds does not
constitute segregation.
b. Discrimination by association occurs when a person is discriminated
against on the basis of his or her association or contacts with one or more
persons designated by one of the enumerated grounds. This would be
the case, for example, of the refusal to employ a person because s/he is
married to a person belonging to a certain ethnic group.
c. The announced intention to discriminate should be considered as discrim-
ination, even in the absence of a specific victim. For instance, an employ-
ment advertisement indicating that Roma/Gypsies need not apply should
fall within the scope of the legislation, even if no Roma/Gypsy has actually
applied.

Paragraph 7 of the Recommendation

17. According to paragraph 7 of the Recommendation, the prohibition of


discrimination should apply in all areas. Concerning employment, the prohib-
ition of discrimination should cover access to employment, occupation and
self-employment as well as work conditions, remunerations, promotions and
dismissals.
Blasphemy, insult and hatred

18. As concerns membership of professional organisations, the prohibition


of discrimination should cover: membership of an organisation of workers or
employers, or any organisation whose members carry on a particular profes-
sion; involvement in such organisations; and the benefits provided for by such
organisations.
19. Concerning education, the prohibition of discrimination should cover pre
-school, primary, secondary and higher education, both public and private.
Furthermore, access to education should not depend on the immigration status
of the children or their parents.
20. As concerns training, the prohibition of discrimination should cover initial
and on-going vocational training, all types and all levels of vocational guidance,
advanced vocational training and retraining, including the acquisition of practical
work experience.
21. As concerns housing, discrimination should be prohibited in particular
in access to housing, in housing conditions and in the termination of rental
contracts.
22. As concerns health, discrimination should be prohibited in particular in
access to care and treatment, and in the way in which care is dispensed and
patients are treated.
48
23. Concerning social protection, the prohibition of discrimination should cover
social security, social benefits, social aid (housing benefits, youth benefits, etc.)
and the way in which the beneficiaries of social protection are treated.
24. As concerns goods and services intended for the public and public places,
discrimination should be prohibited, for instance, when buying goods in a shop,
when applying for a loan from a bank and in access to discotheques, cafs or
restaurants. The prohibition of discrimination should not only target those who
make goods and services available to others, but also those who receive goods
and services from others, as would be the case of a company which selects the
providers of a given product or service on the basis of one of the enumerated
grounds.
25. Concerning the exercise of economic activity, this field covers competition
law, relations between enterprises and relations between enterprises and the
state.
26. The field of public services includes the activities of the police and other law
enforcement officials, border control officials, the army and prison personnel.

Paragraph 8 of the Recommendation


27. According to paragraph 8 of the Recommendation, the law should place
public authorities under a duty to promote equality and to prevent discrimination
in carrying out their functions. The obligations incumbent on such authorities
Council of Europe texts on respect for others' culture and beliefs

should be spelled out as clearly as possible in the law. To this end, public author-
ities could be placed under the obligation to create and implement equality
programmes drawn up with the assistance of the national specialised body
referred to in paragraph 24 of the Recommendation. The law should provide
for the regular assessment of the equality programmes, the monitoring of their
effects, as well as for effective implementation mechanisms and the possibility
for legal enforcement of these programmes, notably through the national spe-
cialised body. An equality programme could, for example, include the nomin-
ation of a contact person for dealing with issues of racial discrimination and
harassment or the organisation of staff training courses on discrimination. As
regards the obligation to promote equality and prevent discrimination, the Rec-
ommendation covers only public authorities; however, it would be desirable
were the private sector also placed under a similar obligation.

Paragraph 10 of the Recommendation

28. According to paragraph 10 of the Recommendation, in urgent cases, fast-


track procedures, leading to interim decisions, should be available to victims
of discrimination. These procedures are important in those situations where
the immediate consequences of the alleged discriminatory act are particularly
serious or even irreparable. Thus, for example, the victims of a discriminatory
eviction from a flat should be able to suspend this measure through an interim
49
judicial decision, pending the final judgment of the case.

Paragraph 11 of the Recommendation

29. Given the difficulties complainants face in collecting the necessary evidence
in discrimination cases, the law should facilitate proof of discrimination. For this
reason, according to paragraph 11 of the Recommendation, the law should
provide for a shared burden of proof in such cases. A shared burden of proof
means that the complainant should establish facts allowing for the presumption
of discrimination, whereupon the onus shifts to the respondent to prove that
discrimination did not take place. Thus, in case of alleged direct racial discrim-
ination, the respondent must prove that the differential treatment has an objec-
tive and reasonable justification. For example, if access to a swimming pool is
denied to Roma/Gypsy children, it would be sufficient for the complainant to
prove that access was denied to these children and granted to non-Roma/Gypsy
children. It should then be for the respondent to prove that this denial to grant
access was based on an objective and reasonable justification, such as the
fact that the children in question did not have bathing hats, as required to gain
access to the swimming pool. The same principle should apply to alleged cases
of indirect racial discrimination.

30. As concerns the power to obtain the necessary evidence and information,
courts should enjoy all adequate powers in this respect. Such powers should be
Blasphemy, insult and hatred

also given to any specialised body competent to adjudicate on an individual


complaint of discrimination (see paragraph 55, below).

Paragraph 12 of the Recommendation

31. Paragraph 12 of the Recommendation states that the law should provide for
effective, proportionate and dissuasive sanctions for discrimination cases. Apart
from the payment of compensation for material and moral damages, sanctions
should include measures such as the restitution of rights which have been lost.
For instance, the law should enable the court to order re-admittance into a firm
or flat, provided that the rights of third parties are respected. In the case of dis-
criminatory refusal to recruit a person, the law should provide that, according
to the circumstances, the court could order the employer to offer employment to
the discriminated person.

32. In the case of discrimination by a private school, the law should provide
for the possibility of withdrawing the accreditation awarded to the school or
the non-recognition of the diplomas issued. In the case of discrimination by an
establishment open to the public, the law should provide for the possibility of
withdrawing a licence and of closing the establishment. For example, in the case
of discrimination by a discotheque, it should be possible to withdraw the licence
50 to sell alcohol.

33. Non-monetary forms of reparation, such as the publication of all or part of a


court decision, may be important in rendering justice in cases of discrimination.

34. The law should provide for the possibility of imposing a programme of
positive measures on the discriminator. This is an important type of remedy in
promoting long-term change in an organisation. For instance, the discriminator
could be obliged to organise for its staff specific training programmes aimed
at countering racism and racial discrimination. The national specialised body
should participate in the development and supervision of such programmes.

Paragraph 15 of the Recommendation

35. According to paragraph 15 of the Recommendation the law should provide


that harassment related to one of the enumerated grounds is prohibited. Harass-
ment consists in conduct related to one of the enumerated grounds which has the
purpose or the effect of violating the dignity of a person and of creating an intim-
idating, hostile, degrading, humiliating or offensive environment. As far as pos-
sible, protection against harassment related to one of the enumerated grounds
should not only target the conduct of the author of the harassment but also that
of other persons. For instance, it should be possible for the employer to be held
responsible, where applicable, for harassment by colleagues, other employees
or third parties (such as clients and suppliers).
Council of Europe texts on respect for others' culture and beliefs

Paragraph 16 of the Recommendation

36. Paragraph 16 of the Recommendation states that the law should provide
for the obligation to suppress public financing of political parties which promote
racism. For example, public financing for electoral campaigns should be refused
to such political parties.

Paragraph 17 of the Recommendation

37. Paragraph 17 of the Recommendation states that the law should provide
for the possibility of the dissolution of organisations which promote racism. In
all cases, the dissolution of such organisations may result only from a court
decision. The issue of the dissolution of these organisations is also dealt with
under Section IV on criminal law (see paragraphs 43 and 49, below).

IV. Criminal law


Paragraph 18 of the Recommendation

38. The Recommendation limits the scope of certain criminal offences set out in
paragraph 18 to the condition that they are committed in public. Current prac-
tice shows that, in certain cases, racist conduct escapes prosecution because it is
not considered as being of a public nature. Consequently, member states should
51
ensure that it should not be too difficult to meet the condition of being committed
in public. Thus, for instance, this condition should be met in cases of words
pronounced during meetings of neo-Nazi organisations or words exchanged in
a discussion forum on the Internet.

39. Some of the offences set out in paragraph 18 of the Recommendation con-
cern conduct aimed at a grouping of persons. Current practice shows that
legal provisions aimed at punishing racist conduct frequently do not cover such
conduct unless it is directed against a specific person or group of persons. As a
result, expressions aimed at larger groupings of persons, as in the case of refer-
ences to asylum seekers or foreigners in general, are often not covered by these
provisions. For this reason, paragraph 18a, b, c and d of the Recommendation
does not speak of group but of a grouping of persons.

40. The term defamation contained in paragraph 18b should be understood


in a broad sense, notably including slander and libel.

41. Paragraph 18e of the Recommendation refers to the crimes of genocide,


crimes against humanity and war crimes. The crime of genocide should be
understood as defined in Article II of the Convention for the Prevention and Pun-
ishment of the Crime of Genocide and Article 6 of the Statute of the International
Criminal Court (see paragraph 45, below). Crimes against humanity and war
crimes should be understood as defined in Articles 7 and 8 of the Statute of the
International Criminal Court.
Blasphemy, insult and hatred

42. Paragraph 18f of the Recommendation refers to the dissemination, distribu-


tion, production or storage of written, pictorial or other material containing racist
manifestations. These notions include the dissemination of this material through
the Internet. Such material includes musical supports such as records, tapes and
compact discs, computer accessories (e.g. floppy discs, software), video tapes,
DVDs and games.

43. Paragraph 18g of the Recommendation provides for the criminalisation of


certain acts related to groups which promote racism. The concept of a group
includes in particular de facto groups, organisations, associations and political
parties. The Recommendation provides that the creation of a group which pro-
motes racism should be prohibited. This prohibition also includes maintaining or
reconstituting a group which has been prohibited. The issue of the dissolution of
a group which promotes racism is also dealt with under Section III on civil and
administrative law (see paragraph 37, above) and below (see paragraph 49).
Moreover, the notion of support includes acts such as providing financing
to the group, providing for other material needs, and producing or obtaining
documents.

44. In its paragraph 18h the Recommendation states that the law should penal-
ise racial discrimination in the exercise of ones public office or occupation. On
52
this point, the definitions contained in paragraphs 1b, 1c and 5 of the Recom-
mendation apply mutatis mutandis. Racial discrimination in the exercise of ones
public office or occupation includes notably the discriminatory refusal of a serv-
ice intended for the public, such as discriminatory refusal by a hospital to care
for a person, and the discriminatory refusal to sell a product, to grant a bank
loan or to allow access to a discotheque, caf or restaurant.

Paragraph 19 of the Recommendation

45. Paragraph 19 of the Recommendation provides that the law should penalise
genocide. To this end, the crime of genocide should be understood as defined
in Article II of the Convention on the Prevention and Punishment of the Crime of
Genocide and Article 6 of the Statute of the International Criminal Court, that
is, as any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, such as: killing members
of the group; causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part; imposing measures intended to pre-
vent births within the group; forcibly transferring children of the group to another
group. The Recommendation refers only to penalisation of genocide and not
of war crimes and crimes against humanity since these are not necessarily of
a racist nature. However, if they do present such a nature, the aggravating
circumstance provided for in paragraph 21 of the Recommendation should
apply.
Council of Europe texts on respect for others' culture and beliefs

Paragraph 20 of the Recommendation

46. Paragraph 20 of the Recommendation provides that instigating, aiding,


abetting or attempting to commit any of the criminal offences covered by para-
graphs 18 and 19 should be punishable. This recommendation applies only to
those offences for which instigating, aiding, abetting or attempting are possible.

Paragraph 21 of the Recommendation

47. According to paragraph 21 of the Recommendation, the racist motivation


of the perpetrator of an offence other than those covered by paragraphs 18 and
19 should constitute an aggravating circumstance. Furthermore, the law may
penalise common offences but with a racist motivation as specific offences.

Paragraph 22 of the Recommendation

48. According to paragraph 22 of the Recommendation, the law should pro-


vide for the criminal liability of legal persons. This liability should come into play
when the offence has been committed on behalf of the legal person by any per-
sons, particularly acting as the organ of the legal person (for example, a presi-
dent or director) or as its representative. Criminal liability of a legal person does
not exclude the criminal liability of natural persons. Public authorities may be
excluded from criminal liability as legal persons.
53

Paragraph 23 of the Recommendation

49. According to paragraph 23 of the Recommendation, the law should provide


for ancillary or alternative sanctions. Examples of these could include commu-
nity work, participation in training courses, deprivation of certain civil or polit-
ical rights (like the right to exercise certain occupations or functions, or voting
or eligibility rights) or publication of all or part of a sentence. As regards legal
persons, the list of possible sanctions could include, besides fines: refusal or
cessation of public benefit or aid, disqualification from the practice of commer-
cial activities, placing under judicial supervision, closure of the establishment
used for committing the offence, seizure of the material used for committing
the offence and the dissolution of the legal person (see on this last point para-
graphs 37 and 43, above).

V. Common provisions
Paragraph 24 of the Recommendation

50. According to paragraph 24 of the Recommendation, the law should pro-


vide for the establishment of an independent specialised body to combat racism
and racial discrimination at national level. The basic principles concerning the
statute of such a body, the forms it might take and its functions, responsibil-
ities, administration, functioning and style of operation are set out in the ECRIs
Blasphemy, insult and hatred

General Policy Recommendation No. 2 on specialised bodies to combat racism,


xenophobia, antisemitism and intolerance at national level.

51. The functions given to this body should be established by law. The Recom-
mendation enumerates a certain number of such functions. Assistance to victims
covers provision of general advice to victims and legal assistance, including rep-
resentation in proceedings before the courts. It also covers assistance in seeking
friendly settlement of complaints.

52. As concerns investigative powers, in order that a national specialised body


may conduct investigations effectively, it is essential that the law provides this
body with the requisite powers, subject to the rules of procedure of the national
legal order. This includes powers granted within the framework of an investi-
gation, such as requesting the production for inspection and examination of
documents and other elements; seizure of documents and other elements for the
purpose of making copies or extracts; and questioning persons. The national
specialised body should also be entitled to bring cases before the courts and to
intervene in legal proceedings as an expert.

53. The functions of the national specialised body should also include monitor-
ing any legislation against racism and racial discrimination, and control of the
conformity of legislation with equality principles. In this respect, the national spe-
54
cialised body should be entitled to formulate recommendations to the executive
and legislative authorities on the way in which relevant legislation, regulations
or practice may be improved.

54. As concerns raising awareness of issues of racism and racial discrimin-


ation throughout society and promoting policies and practices to ensure equal
treatment, the national specialised body could run campaigns in collaboration
with civil society; train key groups; issue codes of practice; and support and
encourage organisations working in the field of combating racism and racial
discrimination.

55. In addition to these functions, the national specialised body may be given
other responsibilities. Moreover, another body could be entrusted with the adju-
dication of complaints through legally-binding decisions, within the limits pre-
scribed by the law.

Paragraph 25 of the Recommendation

56. The Recommendation provides in its paragraph 25 that organisations such


as associations, trade unions and other legal entities with a legitimate interest
should be entitled to bring complaints. Such a provision is important, for instance,
in cases where a victim is afraid of retaliation. Furthermore, the possibility for
such organisations to bring a case of racial discrimination without reference to a
specific victim is essential for addressing those cases of discrimination where it is
Council of Europe texts on respect for others' culture and beliefs

difficult to identify such a victim or cases which affect an indeterminate number


of victims.

Paragraph 27 of the Recommendation


57. According to paragraph 27 of the Recommendation, the law should pro-
vide protection against retaliation. Such protection should not only be afforded
to the person who initiates proceedings or brings the complaint, but should also
be extended to those who provide evidence, information or other assistance in
connection with the court proceedings or the complaint. Such protection is vital
to encourage the victims of racist offences and discrimination to put forward
their complaints to the authorities and to encourage witnesses to give evidence.
In order to be effective, the legal provisions protecting against retaliation should
provide for an appropriate and clear sanction. This might include the possibility
of an injunction order to stop the retaliatory acts and/or to compensate victims
of such acts.

55
Parliamentary Assembly of the Council of Europe:
Resolution 1510 (2006)
Freedom of expression and respect for religious beliefs

1. The Parliamentary Assembly of the Council of Europe reaffirms that there can-
not be a democratic society without the fundamental right to freedom of expres-
sion. The progress of society and the development of every individual depend on
the possibility of receiving and imparting information and ideas. This freedom is
not only applicable to expressions that are favourably received or regarded as
inoffensive but also to those that may shock, offend or disturb the state or any sec-
tor of the population, in accordance with Article 10 of the European Convention
on Human Rights (ETS No. 5).
2. Freedom of thought, conscience and religion constitutes a necessary require-
ment for a democratic society and one of the essential freedoms of individuals
for determining their perception of human life and society. Conscience and reli-
gion are basic components of human culture. In this sense, they are protected 57
under Article 9 of the European Convention on Human Rights.
3. Freedom of thought and freedom of expression in a democratic society must,
however, permit open debate on matters relating to religion and beliefs. The
Assembly recalls in this regard its Recommendation 1396 (1999) on religion
and democracy. Modern democratic societies are made up of individuals of
different creeds and beliefs. Attacks on individuals on grounds of their religion
or race cannot be permitted but blasphemy laws should not be used to curtail
freedom of expression and thought.
4. The Assembly emphasises the cultural and religious diversity of its member
states. Christians, Muslims, Jews and members of many other religions, as well
as those without any religion, are at home in Europe. Religions have contrib-
uted to the spiritual and moral values, ideals and principles which form the
common heritage of Europe. In this respect, the Assembly stresses Article 1 of
the Statute of the Council of Europe (ETS No. 1), which stipulates that the aim
of the Council of Europe is to achieve greater unity between its members for
the purpose of safeguarding and realising the ideals and principles which are
their common heritage.
5. The Assembly underlines its commitment to ensuring that cultural diversity
becomes a source of mutual enrichment, not of tension, through a true and open
dialogue among cultures on the basis of mutual understanding and respect. The
overall aim should be to preserve diversity in open and inclusive societies based
Blasphemy, insult and hatred

on human rights, democracy and the rule of law, by fostering communication


and improving the skills and knowledge necessary for living together peacefully
and constructively within European societies, between European countries and
between Europe and its neighbouring regions.
6. Reactions to images perceived as negative, transmitted through books, films,
cartoons, paintings and the Internet, have recently caused widespread debates
about whether and to what extent respect for religious beliefs should limit
freedom of expression. Questions have also been raised on the issues of media
responsibility, self-regulation and self-censorship.
7. Blasphemy has a long history. The Assembly recalls that laws punishing blas-
phemy and criticism of religious practices and dogmas have often had a nega-
tive impact on scientific and social progress. The situation started changing
with the Enlightenment, and progressed further towards secularisation. Modern
democratic societies tend to be secular and more concerned with individual
freedoms. The recent debate about the Danish cartoons raised the question of
these two perceptions.
8. In a democratic society, religious communities are allowed to defend them-
selves against criticism or ridicule in accordance with human rights legislation
and norms. States should support information and education about religion so
58
as to develop better awareness of religions as well as a critical mind in its citi-
zens in accordance with Assembly Recommendation 1720 (2005) on education
and religion. States should also develop and vigorously implement sound strat-
egies, including adequate legislative and judicial measures, to combat religious
discrimination and intolerance.
9. The Assembly also recalls that the culture of critical dispute and artistic
freedom has a long tradition in Europe and is considered as positive and
even necessary for individual and social progress. Only totalitarian systems
of power fear them. Critical dispute, satire, humour and artistic expression
should therefore enjoy a wider degree of freedom of expression, and recourse
to exaggeration should not be seen as provocation.
10. Human rights and fundamental freedoms are universally recognised, in par-
ticular under the Universal Declaration of Human Rights and international cov-
enants of the United Nations. The application of these rights is not, however,
universally coherent. The Assembly should fight against any lowering of these
standards. The Assembly welcomes the United Nations Secretary-Generals ini-
tiative on an alliance of civilisations, which aims to mobilise concerted action
at the institutional and civil society levels to overcome prejudice, misperceptions
and polarisation. A true dialogue can only occur when there is genuine respect
for and understanding of other cultures and societies. Values such as respect
for human rights, democracy, rule of law and accountability are the product of
mankinds collective wisdom, conscience and progress. The task is to identify the
roots of these values within different cultures.
Council of Europe texts on respect for others' culture and beliefs

11. Whenever it is necessary to balance human rights which are in conflict with
each other in a particular case, national courts and national legislators have
a margin of appreciation. In this regard, the European Court of Human Rights
has held that, whereas there is little scope for restrictions on political speech or
on the debate of questions of public interest, a wider margin of appreciation is
generally available when regulating freedom of expression in relation to matters
liable to offend intimate personal moral convictions or religion. What is likely to
cause substantial offence to persons of a particular religious persuasion will vary
significantly from time to time and from place to place.
12. The Assembly is of the opinion that freedom of expression as protected
under Article 10 of the European Convention on Human Rights should not be
further restricted to meet increasing sensitivities of certain religious groups. At
the same time, the Assembly emphasises that hate speech against any religious
group is not compatible with the fundamental rights and freedoms guaranteed
by the European Convention on Human Rights and the case law of the European
Court of Human Rights.
13. The Assembly calls on parliaments in member states to hold debates on free-
dom of expression and respect for religious beliefs, and on parliamentarians to
report back to the Assembly on the results of these debates.
14. The Assembly encourages religious communities in Europe to discuss free-
dom of expression and respect for religious beliefs within their own community 59

and to pursue a dialogue with other religious communities in order to develop a


common understanding and a code of conduct for religious tolerance which is
necessary in a democratic society.
15. The Assembly also invites media professionals and their professional organ-
isations to discuss media ethics with regard to religious beliefs and sensitivities.
It encourages the creation of press complaints bodies, media ombudspersons or
other self-regulatory bodies, where such bodies do not yet exist, which should
discuss possible remedies for offences to religious persuasions.
16. The Assembly encourages intercultural and inter-religious dialogue based on
universal human rights, involving on the basis of equality and mutual respect
civil society, as well as the media, with a view to promoting tolerance, trust
and mutual understanding, which are vital for building coherent societies and
strengthening international peace and security.
17. The Assembly encourages the Council of Europe bodies to work actively on
the prevention of hate speech directed at different religious and ethnic groups.
18. The Assembly resolves to revert to this issue on the basis of a report on
legislation relating to blasphemy, religious insults and hate speech against
persons on grounds of their religion, after taking stock of the different approaches
in Europe, including the application of the European Convention on Human
Rights, the reports and recommendations of the European Commission against
Blasphemy, insult and hatred

Racism and Intolerance (ECRI) and of the European Commission for Democracy
through Law (the Venice Commission), and the reports of the Council of Europe
Commissioner for Human Rights.

60
Parliamentary Assembly of the Council of Europe:
Recommendation 1805 (2007)
Blasphemy, religious insults and hate speech
against persons on grounds of their religion

1. The Parliamentary Assembly recalls its Resolution 1510 (2006) on freedom of


expression and respect for religious beliefs and reiterates its commitment to the
freedom of expression (Article 10 of the European Convention on Human Rights,
ETS No. 5, hereafter the Convention) and the freedom of thought, conscience
and religion (Article 9 of the Convention), which are fundamental cornerstones
of democracy. Freedom of expression is not only applicable to expressions that
are favourably received or regarded as inoffensive, but also to those that may
shock, offend or disturb the state or any sector of population within the limits of
Article 10 of the Convention. Any democratic society must permit open debate
on matters relating to religion and religious beliefs.
2. The Assembly underlines the importance of respect for, and understanding
of, cultural and religious diversity in Europe and throughout the world and rec- 61
ognises the need for ongoing dialogue. Respect and understanding can help
avoid frictions within society and between individuals. Every human being must
be respected, independently of religious beliefs.
3. In multicultural societies it is often necessary to reconcile freedom of expres-
sion and freedom of thought, conscience and religion. In some instances, it may
also be necessary to place restrictions on these freedoms. Under the Conven-
tion, any such restrictions must be prescribed by law, necessary in a democratic
society and proportionate to the legitimate aims pursued. In so doing, states
enjoy a margin of appreciation because national authorities may need to adopt
different solutions taking account of the specific features of each society; the
use of this margin is subject to the supervision of the European Court of Human
Rights.
4. With regard to blasphemy, religious insults and hate speech against persons
on the grounds of their religion, the state is responsible for determining what
should count as criminal offences within the limits imposed by the case law of the
European Court of Human Rights. In this connection, the Assembly considers that
blasphemy, as an insult to a religion, should not be deemed a criminal offence.
A distinction should be made between matters relating to moral conscience and
those relating to what is lawful, matters which belong to the public domain, and
those which belong to the private sphere. Even though today prosecutions in this
respect are rare in member states, they are legion in other countries of the world.
Blasphemy, insult and hatred

5. The Assembly welcomes the preliminary report adopted on 16 and


17 March 2007 by the European Commission for Democracy through Law
(the Venice Commission) on this subject and agrees with it that in a demo-
cratic society, religious groups must tolerate, as must other groups, critical pub-
lic statements and debate about their activities, teachings and beliefs, provided
that such criticism does not amount to intentional and gratuitous insults or hate
speech and does not constitute incitement to disturb the peace or to violence
and discrimination against adherents of a particular religion. Public debate,
dialogue and improved communication skills of religious groups and the media
should be used in order to lower sensitivity when it exceeds reasonable levels.

6. Recalling its Recommendation 1720 (2005) on education and religion, the


Assembly emphasises the need for greater understanding and tolerance among
individuals of different religions. Where people know more about the religion
and religious sensitivities of each other, religious insults are less likely to occur
out of ignorance.

7. In this context, the Assembly welcomes the initiative of the United Nations
to set up a new body under the theme Alliance of Civilizations to study and
support contacts between Muslim and so-called Western societies, but feels that
such an initiative should be enlarged to include other religions and non-religious
62 groups.

8. The Assembly recalls the relevant case law on freedom of expression under
Article 10 of the Convention developed by the European Court of Human Rights.
Whereas there is little scope for restrictions on political speech or on the debate
of questions of public interest, the Court accepts a wider margin of appreciation
on the part of contracting states when regulating freedom of expression in rela-
tion to matters liable to offend intimate personal convictions within the sphere of
morals or, especially, religion.

9. However, the Assembly stresses that this margin of appreciation is not unlim-
ited and that any restrictions on the freedom of expression must comply with
the case law of the European Court of Human Rights. Freedom of expression
guaranteed under Article 10 of the Convention is of vital importance for any
democratic society. In accordance with the Statute of the Council of Europe,
common recognition of democratic values is the basis for membership of the
Organisation.

10. The Assembly is aware that, in the past, national law and practice concern-
ing blasphemy and other religious offences often reflected the dominant pos-
ition of particular religions in individual states. In view of the greater diversity
of religious beliefs in Europe and the democratic principle of the separation
of state and religion, blasphemy laws should be reviewed by the governments
and parliaments of the member states.
Council of Europe texts on respect for others' culture and beliefs

11. The Assembly notes that under the International Convention on the Elimina-
tion of All Forms of Racial Discrimination of the United Nations, signatory par-
ties are obliged to condemn discrimination and take effective measures against
it. All member states signatory to this convention must ensure that members of a
particular religion are neither privileged nor disadvantaged under blasphemy
laws and related offences.
12. The Assembly reaffirms that hate speech against persons, whether on reli-
gious grounds or otherwise, should be penalised by law in accordance with
General Policy Recommendation No. 7 on National legislation to combat rac-
ism and racial discrimination produced by the European Commission against
Racism and Intolerance (ECRI). For speech to qualify as hate speech in this
sense, it is necessary that it be directed against a person or a specific group
of persons. National law should penalise statements that call for a person or
a group of persons to be subjected to hatred, discrimination or violence on
grounds of their religion.
13. The Assembly emphasises that freedom of religion as protected by Article 9 of
the Convention also protects religions in their capacity to establish values for their
followers. While religions are free to penalise in a religious sense any religious
offences, such penalties must not threaten the life, physical integrity, liberty or
property of an individual, or womens civil and fundamental rights. In this context,
the Assembly recalls its Resolution 1535 (2007) on threats to the lives and free-
63
dom of expression of journalists and strongly condemns the death threats issued
by Muslim leaders against journalists and writers. Member states have the obliga-
tion to protect individuals against religious penalties which threaten the right to
life and the right to liberty and security of a person under Articles 2 and 5 of the
Convention. Moreover, no state has the right to impose such penalties for religious
offences itself.
14. The Assembly notes that member states have the obligation under Article 9
of the Convention to protect freedom of religion including the freedom to mani-
fest ones religion. This requires that member states protect such manifestations
against disturbances by others. However, these rights may sometimes be sub-
ject to certain justified limitations. The challenge facing the authorities is how to
strike a fair balance between the interests of individuals as members of a reli-
gious community in ensuring respect for their right to manifest their religion or
their right to education, and the general public interest or the rights and interests
of others.
15. The Assembly considers that, as far as it is necessary in a democratic society
in accordance with Article 10, paragraph 2, of the Convention, national law
should only penalise expressions about religious matters which intentionally and
severely disturb public order and call for public violence.
16. It calls on national parliaments to initiate legislative action and scrutiny
regarding the national implementation of this recommendation.
Blasphemy, insult and hatred

17. The Assembly recommends that the Committee of Ministers:


17.1. take note of Resolution 1510 (2006) on freedom of expression and
respect for religious beliefs together with this recommendation and forward
both texts to the relevant national ministries and authorities;
17.2. ensure that national law and practice:
17.2.1. permit open debate on matters relating to religion and beliefs
and do not privilege a particular religion in this respect, which would
be incompatible with Articles 10 and 14 of the Convention;
17.2.2. penalise statements that call for a person or a group of per-
sons to be subjected to hatred, discrimination or violence on grounds
of their religion as on any other grounds;
17.2.3. prohibit acts which intentionally and severely disturb the pub-
lic order and call for public violence by references to religious mat-
ters, as far as it is necessary in a democratic society in accordance
with Article 10, paragraph 2, of the Convention;
17.2.4. are reviewed in order to decriminalise blasphemy as an insult
to a religion;

64
17.3. encourage member states to sign and ratify Protocol No. 12 to the
European Convention on Human Rights (ETS No. 177);
17.4. instruct its competent steering committee to draw up practical guide-
lines for national ministries of justice intended to facilitate implementation of
the recommendations contained in paragraph 17.2 above;
17.5. instruct its competent steering committee to draw up practical guide-
lines for national ministries of education intended to raise understanding and
tolerance among students with different religions;
17.6. initiate, through their national ministries of foreign affairs, action at
the level of the United Nations in order to ensure that:
17.6.1. national law and practice of signatory states of the Inter-
national Convention on the Elimination of All Forms of Racial Discrim-
ination do not privilege persons with a particular religion;
17.6.2. the work of the Alliance of Civilizations avoids the stereotype
of a so-called Western culture, widens its scope to other world reli-
gions and promotes more open debates between different religious
groups and with non-religious groups;
17.7. condemn on behalf of their governments any death threats and incite-
ments to violence by religious leaders and groups issued against persons
for having exercised their right to freedom of expression about religious
matters;
Council of Europe texts on respect for others' culture and beliefs

17.8. invite member states to take more initiatives to promote tolerance, in


co-operation with the ECRI.

65
III. Excerpts from reports presented at
the international round-table conference on
Art and Sacred Beliefs: from Collision
to Co-existence
(Athens, 31 January to 1 February 2008)
1. Art and Sacred Beliefs: from Collision to Co-existence
Gianni Buquicchio
Secretary of the Venice Commission

The Council of Europe now has 47 member states and 53 countries, includ-
ing six outside Europe, are involved in the Venice Commission. The concept
of Europe that the Council of Europe and the Venice Commission are proud to
uphold and promote is based on the principle of inclusion in a context of diver-
sity. Indeed, we are convinced that diversity is, and must be, a source of mutual
enrichment fostering political, intercultural and interfaith dialogue.
We believe there is but one civilisation, with a cultural, religious and humanist
heritage rooted in common values and principles. This civilisation encompasses
a range of religious, social, political, historical and legal elements, which may
be so similar as to be indistinguishable, although that is not necessarily the case.
Our societies are evolving, intersecting and mingling as a result of modernisa-
tion and globalisation. Owing to the presence of cultures and religions other 69

than those that were clearly in the majority until quite recently, new models are
constantly being introduced, and new challenges thrown up. Fear of loss of iden-
tity and assimilation could but must not prompt us to take refuge in past trad-
itions, refusing to reappraise them in the light of new situations both now and in
the future. Rising to such challenges, rather than ignoring them, will make our
societies stronger and further their development. This calls, however, for discus-
sion and a willingness to learn and compromise.
The law is an excellent means of democratisation, as the Venice Commission,
whose full title is the European Commission for Democracy through Law, can
attest: democracies have to be subject to the rule of law and respect human
rights and fundamental freedoms. In the complex, multicultural society we now
live in, however, respecting human rights with the degree of sophistication to
which Europe is accustomed is not necessarily straightforward. These rights
overlap and sometimes clash. We are here for the very purpose of discussing
the clash between freedom of expression, particularly artistic expression, and
freedom of conscience and religion.
The preliminary point should be made that this is not a clash between categories
of people, but between the interests each individual may uphold at a given time.
The same person invoking his or her freedom of conscience today may tomor-
row invoke his or her freedom of expression. It is therefore in the interests of all
of us to arrive at a balanced solution to this clash.
Blasphemy, insult and hatred

I also wish to point out that, in Europe, each and every one of us enjoys rights
and fundamental freedoms, and that states are duty-bound to guarantee them for
everyone under their jurisdiction, irrespective of citizenship, religion or culture.
Ignoring an individuals rights on the pretext that he or she does not possess citi-
zenship of a European state is contrary to the European Convention on Human
Rights. Furthermore, any restriction on fundamental rights must be necessary in
a democratic society, which means an inclusive society built on the contributions
of each individual.

Freedom of expression is a key component of the democratic process. It is not


absolute, however; restrictions on it include defamatory libel and incitement to
violence and hatred, inter alia of a racial or religious nature.

We can and must restrict freedom of expression where this is necessary in a


democratic society, but cannot and must not make it subject to a duty of respect.
A newspaper article or work of literature or art cannot be prohibited solely on
the grounds that it shows irreverence towards an established order or a shared
belief, even one shared by the majority of the population. Certain statements
may shock some of the population, in which case they must be refuted, con-
demned and rejected. They must be countered by the means available within
a democratic society, such as debate and protest. On no account, however, is
70
there any excuse whatsoever for resorting to violence or threats against those
who utter them.

Legal proceedings can also be an effective way to combat intolerant and offen-
sive statements, such as those inciting hatred. According to the Venice Commis-
sions study of criminal legislation in this area, the latter is a criminal offence
in almost all Council of Europe member states. Existing legislation should be
applied comprehensively, properly and without discrimination. Race must not
be deemed more important than religion when it comes to punishing insults
or incitement to hatred. Nor must a religious groups status unduly influence its
treatment when it is the perpetrator of an offence rather than the victim.

However, the Venice Commission has come to the conclusion that criminal pro-
visions afford only a partial solution to intolerance. It is of the view that, in a
democratic society, intolerance and prejudice are more effectively countered by
means of public debate.

Just like other groups within society, religious groups have to tolerate public
statements and debates critical of their activities, teachings and beliefs, provided
that such criticism does not consist of deliberate, gratuitous insults or incitement
to disturb public order or discriminate against followers of a particular religion.

National authorities must give due and proportionate consideration to religious


groups sensibilities when deciding whether or not to impose and enforce restric-
tions on freedom of expression. Modern societies must not be taken hostage
Conference on Art and Sacred Beliefs: from Collision to Co-existence

by such sensibilities, even if they are expressed in many parts of the world,
including locations other than that of the incident having aroused them.
It must be emphasised, however, that the exercise of free speech entails duties
and responsibilities, as stipulated in Article 10 of the European Convention on
Human Rights. Accordingly, we shall discuss the existence of an ethic of respon-
sibility for artists and the media, which is an avenue worth exploring. It may be
the case that not enough attention has hitherto been given to the need to improve
the communication skills of both the media and religious groups.
Finally, I would like to say a few words about the approach we have adopted for
this round-table conference. We believe it is possible to move on from confront-
ation to the co-existence of the right to artistic freedom and freedom of expression,
on the one hand, and the right to respect for ones beliefs, on the other. We are
keen to identify ways of doing so, and are open to any practical, constructive
suggestions.
Today we have brought together representatives of very different cultures, reli-
gions, backgrounds and occupations. We have also invited our non-European
friends to talk about their experiences and share their opinions and their reactions
to our ideas.
If this round-table conference is to achieve the results sought by the Venice
Commission, however, our statements must not be dictated by our intellec-
71
tual comfort zones or the certainty of our own immunity to intolerance. It is
all too easy to assume that only other people are intolerant. Dialogue, espe-
cially intercultural dialogue, based on such a premise will never be successful.
Any discussion held under such conditions would be false, and this round-table
conference would be completely pointless.
2. Art and religious beliefs: the limits of liberalism
Nicos C. Alivizatos
Professor of Constitutional Law, University of Athens, Greece

As a lawyer, when dealing with cases of freedom of art and its limits, I feel
as awkward as an engineer would feel, if called to give solutions to practical
problems, having no tools, but merely abstract concepts in hand.
For there is no such thing as a generally accepted definition of the notion of
art. Therefore, every time one comes across a case that explores possible
restrictions on artistic creation, it does not suffice to claim that the latter is free
and hence protected; first one needs to clarify whether or not the work at issue
is indeed a work of art. In our legal systems, if the competent court is convinced
on this matter, it is highly likely that we reach a judgment in our favour. If not,
then, in all likelihood, the case is lost.
But which are the criteria that would allow us to claim that painting A is a work
73
of art, while painting B is not? If in relation to a Picasso or a David painting, the
name of the creator alone would be enough to convince, then the case might
be more complicated for a new artist. It is similarly the case when the question
is raised in relation to the work of a well-known artist who, however, happens
to be unknown to the bench. Will we rely on the judges aesthetics? Or should
we resort to experts opinions? And if we opt for the second option, who would
these experts be eventually?
These are some of the great dilemmas that a legist (in particular, a practising
lawyer) comes across when handling such cases. And it does not come as a
surprise that he or she might feel insecure.
However, I did not prefix the above examples just to gain the readers sympathy;
what I wished was to introduce the foundation upon which I will attempt to base
the reflections that follow. This foundation is not to be found in solid legal cer-
titude, but rather in the drifting sand of abstract notions. Thus, you should not
expect clear-cut solutions from this approach, but rather criteria, which, again,
might not always lead to the best outcome in all cases.
Religious beliefs are much stronger compared to other beliefs, equally signifi-
cant, but ones that do not concern equally intimate choices. Each persons rela-
tion with the metaphysical is usually so complex and special that a relevant
offence of similar emotions might well cause a disproportionately severe shock
so severe that it would be natural, not just for the victim, but further for every
Blasphemy, insult and hatred

sensitive person, not to tolerate such an offence. In brief, religious beliefs glo-
bally enjoy a higher level of protection compared to that guaranteed for politi-
cal, philosophical, national or other relations between a person and a certain
group, faith or theory because offences against religious beliefs affect the most
intimate part of a persons inner world.

On the other hand, I have the impression though I am not an expert that
a constituent element of art, in general and of each particular work of art, is
that it refers or addresses itself to the general public, irrespective of political,
national, philosophical, religious, racial or other affiliations. This is probably
why the broader the public that is moved by a certain work of art (usually even
after the lapse of several years after its creation), the more significant the latter
is considered.

Therefore, the special protection reserved for religious beliefs (on the one hand)
and the special protection reserved for art on the basis of the universality or
breadth of the public, beyond geographic or other affiliations, to which a work
of art is addressed (on the other hand) constitute the two pivots of the main
argument underlying my approach on the limits of liberalism in the field of art,
whenever a work of art hurts directly or indirectly the religious beliefs of
those to whom it is addressed.
74
For example, if there had been a movie based on Salman Rushdies Satanic
Verses, it would not have been the same if that film had been broadcast in a
cinema in central Athens as opposed to a cinema in a town of purely Muslim
population in Thrace, such as Echinos. The same would be the case with a novel
that violently criticised Zionism: while it could be freely on sale in bookstores, it
would have been impermissible to distribute it outside a synagogue at the end
of a religious ritual. Lastly, a cover of a magazine featuring a cartoon of our late
Archbishop Christodoulos (one of those occasionally published by his critics)
would have been truly inconceivable as something to be handed out to those
attending his funeral.

All the above examples refer to the context, that is, the circumstances under
which it is legitimate for a work of art to be exposed. When these circumstances,
taken together with the works content, cease to pertain to the general public
and instead aim (often deliberately) at a distinct group, with the (obvious) inten-
tion to strike at the group members religious beliefs, I support the view that it is
legitimate for restrictions to the freedom of art to be introduced. In such cases, it
would not really be restrictions on the artists freedom to create, but on his/her
discretion to choose how to present a certain work to the public. In other words,
such a restriction would not affect the content of a work itself, but would consti-
tute a mere and only marginal restriction on the works free presentation and dis-
semination, using as a criterion the focalisation and individualisation that each
presentation and dissemination bear.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

According to this criterion, since it seems there was not such intention to individu-
alise, I consider the judgments given by the European Court of Human Rights
on the well-known cases of Otto Preminger v. Austria, in 1994, and Wingrove
v. the UK, in 1996 to be false. In the first case, because the Court overlooked
the fact that the broadcast of the particular movie did not take place in a central
venue, but in a small cinfile cinema, with a clear forewarning to the public on
what it was about to watch; in the second case, because the contentious work
was not even going to be openly broadcast, but was only going to be distrib-
uted as a video. Therefore, in both cases, prospective spectators were aware of
the risk they were taking. Under these circumstances, the ban to broadcast the
work was not legitimate, since it surpassed the aim for which it was imposed.
Fortunately, on the occasion of and this has to be stressed a series of Turk-
ish cases, the Strasbourg Court shifted from its previous case law on the issue to
hold that a possible offence of religious beliefs caused by a work of art does not
justify restrictions on the authors literary style and philosophical-religious views.

On the same ground, equally false was the interim prohibition imposed on
the screening of the film The Last Temptation by Martin Scorsese in Athens, in
v
1998; the confiscation of Mr Androulakiss novel M (M to the power of n) in
Thessaloniki, in 2000; the removal of a painting by Belgian artist Thierry de
Cordier during the Outlook exhibition in Athens, in 2003; the confiscation of
a comic book entitled Life of Jesus by Austrian cartoonist Gerhard Handerer,
75
also in 2003; and the removal of a video by E. Stephani from the Art Athina
exhibition, in 2007.

This is not the appropriate occasion to refer in detail to the circumstances and
peculiarities of each of the above incidents. What underlies all of them, though,
is that the enforcement of the above measures against the works was the result of
action taken by groups of fundamentalist Greek Orthodox, who were complain-
ing that the contentious works offended their religious beliefs. Luckily, in none of
the above cases were the restrictions imposed (against the artists, dealers and
others) confirmed in the main proceedings that followed the interim measures.

Let us go ahead now with implementing the individualisation criterion on the


incomparably more sensitive aspect, which is the content of the work of art itself:
is it legitimate for a religious leader to oppose a direct, and probably extrava-
gant, satire against him in a play or movie? Do the followers of a certain religion
have the same right? The above example does not focus on the restriction on the
way a work of art is presented (that is, the works context), but on its very con-
tent. Would not the endorsement of such restrictions be equal to an unacceptable
shrinkage of the freedom of artistic work?

Thus, we reach the core of the individualisation argument, since in such cases,
the restriction concerns the artist himself and not his/her manager. At this point,
two running distinctions can prove useful:
Blasphemy, insult and hatred

Firstly, there is a distinction between a person and a group that is a religious


community. With the exception of marginal and blatantly gross insults, I consider
that it is only when a specific individuals religious beliefs are hurt by a work
of art that such restrictions could be found plausible because, in such cases,
the pain caused can be intolerable. In contrast, it would be hard to imagine the
imposition of such restrictions when the artist does not offend individuals, but
rather a certain religious group in an impersonal way: the Catholics are the
Muslims are. Of course, the question raised is how individualisation should
be defined in each specific case.
At this point, it is important to clarify what is the specific object of the offence. In
particular, I consider that, along with other human beliefs and feelings, religious
beliefs are not that solid and cohesive, but instead encompass a gradation.
According to the distinction made by paragraph 1 of Article 9 of the European
Convention on Human Rights, a persons freedom of conscience and religion
includes their inner world (intrieur) as well as that persons right to change reli-
gion or beliefs at any time, without formalities and with no adverse implications
on him and his family.
A second level includes the persons freedom, either alone or with others, in pub-
lic or in private, to manifest their religion or beliefs. Lastly, in the periphery of this
freedom, lies religious practice.
76
I reckon that an imaginary diagram, which consists of three homocentric circles,
can be helpful to classify offences to the religious beliefs of a certain person as
more or less tolerable. The closer the offence gets to the freedoms core, that is,
to the freedom of religious consciousness, the less tolerable it should be.
For example, a work of art that questions the sincerity of a religious leaders
beliefs or a specific believers faith should be less bearable than another that
simply criticises the way the same leader or person manifests their beliefs. Even
greater tolerance should be shown towards critics of everyday religious prac-
tices, such as use of the Muslims scarf, the fast, the cross.
The above approach in particular, the focalisation and individualisation cri-
terion provides, I would like to believe, an indicator for that exceptional point
where freedom of art reaches its limits, because the pain that this freedom may
cause to a specific person could be disproportionate. This criterion has the privi-
lege that it can be applied both to the way a work of art is presented, that is,
the circumstances, and to the works content. Its application might not be always
easy; however, it facilitates the ad hoc deliberation that aims to reach a sound
solution in each particular case.
3. An ethics of responsibility for artists
Boualem Bessaih
President of the Constitutional Council of Algeria

This is a place infused with art and history, to which Alfred de Musset paid the
greatest possible homage by writing, in his Premires Posies:
O Greece! Of arts, idolatry, the land,
Of my insensate vows the country grand.

Whether by deliberate choice or happy coincidence, we are here in this land


of arts to discuss the complex, sensitive theme of Art and Sacred Beliefs: from
Collision to Co-existence, in relation to both the various fields on which it touches,
particularly those pertaining to cultures, civilisations, human rights and beliefs,
and the tensions it provokes in a world that is increasingly prey to intolerance
and violence as forms of expression. However, our theme is also an appeal to
humanity, in its rich plurality and diversity, to take up the challenge of confront-
ation and win the gamble of co-existence, yet without undermining the sacro- 77
sanct principle of freedom.
This is a difficult challenge, since it is a matter of balancing freedom with the
sacred beliefs of every human being, and safeguarding freedom of expression,
which feeds artistic creativity, while respecting other peoples sacred beliefs: in
short, arriving at an enduring, continually renewed equilibrium between art and
religion. In a world built on plurality and diversity, human beings co-existence
is conditional upon a lasting balance between the two fundamental values of
freedom and respect for sacred beliefs, both of which are at once demanding
and edifying.
Freedom is a universal human value. Let us listen to the words of the French poet
and author Alfred de Musset, on whom I shall once again call. With his usual
magical mastery of language, he describes it as follows:
Wealth is less than life, life less than love,
love less than liberty! Yes, liberty!
The word must have some meaning, since
these past five thousand years peoples have been
intoxicated by its utterance.

I have no intention of going back over what has already been said about free-
dom of expression and freedom of belief, or the limitations of the law as a
solution to blasphemy and other insults to peoples sacred beliefs via images,
writings or painting. The aims of my contribution are modest. With a view to
Blasphemy, insult and hatred

taking forward the debate on the existence of an ethic of responsibility for


artists, I shall give my esteemed audience a few historical examples of such an
ethic, which is crucial if human beings are to co-exist, as they can and must.
This co-existence is vital for the future of humanity; it can be achieved, as long
as human beings, all human beings, are prepared to enter into calm, frank and
sincere dialogue, so that they can all get to know one another, understand what
causes hurt to others, accept one another and learn to live together in spite of
their differences.
For surely human beings anywhere and everywhere have no choice but to live
alongside one another, to accept one another, to tolerate one another and even
to endure one another, in spite of their differences, if confrontation is to be
avoided.
While it is now difficult to dispute the existence of universal values forming the
hard core of the human being, it is equally difficult to deny the existence of
values and cultures by which individuals and peoples identify and distinguish
themselves. As an expression of the universal and distinctive aspects of these
values and cultures, art can help to bring people together and ward off the spec-
tre of confrontation.
As an aesthetic form, arts ultimate goal is to arouse emotions and sensations,
to strike a chord, to attract positive aesthetic judgments, to elicit sensitivity and
78
to enchant. Poets, for example, who possess the art of combining words, tones
and rhythms to evoke images and suggest sensations and emotions, according
to an encyclopaedia definition, are themselves imbued with emotion and sensi-
tivity. As Abu Hamid Al-Ghazali (1058-1111), the renowned Muslim theologian
and intellectual, said in this connection:
He who enchants not the springtime
And its flowers,
Who cradles not the lute and its strings,
Has a morbid nature
For which he has no cure.

In their relations with others, poets as creators of dreams cannot attract nega-
tive judgments without betraying their own sensibilities or tarnishing the dreams
they procure for others, and hence their very raison dtre. This relationship
between dreams and the opinions of others is just as valid for the artist wielding
a paintbrush.
The poets cry from the heart, appeal to reason, ardent desire for intelligence
and spontaneous deferral to wisdom all make us want to build a world in which
the co-existence of peoples, civilisations, cultures and religions can flourish under
the banner of freedom, thereby becoming conviviality, love and friendship.
In the face of so much disorder in a disturbed world, so much incomprehen-
sion, so many misunderstandings, so much rejection, so much blasphemy, which
defame their victims and degrade their perpetrators, perhaps we ought to refer
Conference on Art and Sacred Beliefs: from Collision to Co-existence

to the inspiring humanist works of great artists who have left their indelible mark
in the form of enduring, vital points of reference, and who are united by history
despite their differing backgrounds and beliefs and the fact that they express
themselves in different languages and are separated by both distance and time.

I would like to talk about four events, each of which serves as an example of
constructive tolerance, greatness of spirit and emotional intelligence.

Let us begin with St Francis of Assisi, the apostle who in 1219, scorning earthly
favours and pleasures, devoted his life to human happiness and went to the
Pope as a pilgrim of humanity to exhort him to suspend the crusades because,
in his view, Christianity and Islam were soulmates and the offspring of one and
the same God.

In 1229, Francis of Assisi went to meet the Governor of Egypt, Sultan Al-Kamil,
the nephew of Saladin, to join with him in opening, under their combined aus-
pices, the first dialogue between Christian and Muslim theologians in the city of
Damietta.

It was this very Al-Kamil who granted to Frederick II, Emperor of Germany and
King of Sicily, a man of culture and fluent in Arabic, a right of passage to holy
sites for Christian pilgrims, the neutrality of Jerusalem and a right of access to
the holy sites of Nazareth and Bethlehem, and then sent him scholars and art- 79
ists in various disciplines to make Palermo into a city of culture and civilisation.

Drawing on more recent times, I would like to mention the Amir Abdelkader, a
statesman, military leader, philosopher and poet. In 1860, in Damascus, where
he was living in exile from his native Algeria, he and his men saved 12 000 Chris-
tians condemned to certain death. A crowd of fanatical, manipulated Muslims
having decided to massacre the Christians, for reasons too lengthy to explain,
Abdelkader gave refuge to all the Christians of Damascus in his own home and
those of his lieutenants. He went to fetch them himself, under the protection of his
arms. He worked day and night to finish the task he had set himself, then sat in
front of his house and promised a monetary reward from his personal funds to
anyone who brought him a Christian alive. This admirable feat earned him writ-
ten recognition and presents from all the kings and princes of the time, headed
by the Pope.

The agitated crowd responded to his gesture by shouting out loud: You who
once fought the Christians in Algeria, why do you now try to stop us aveng-
ing their insults? Deliver us those you have hidden in your house. He replied:
What you are doing is a culpable act, contrary to Gods law. As for me, I did
not fight Christians, but conquerors claiming to be Christians. When Bishop
Pavy of Algiers wrote to thank him in 1862, he answered as follows: We had
a duty to do right by the Christians, out of respect for the Muslim faith and the
rights of humanity. Respect for the rights of humanity! Surely this is already the
Blasphemy, insult and hatred

thinking of a harbinger, his words presaging the 1948 Universal Declaration of


Human Rights.
Today, tensions caused by a number of factors are making the world an unstable
and hence a less safe place. As well as wars and other social scourges, factors
such as exclusion, intolerance and rejection of those who are different make it
harder for us to find spiritual peace and serenity, and may spark fresh conflicts.
If freedom is to retain some degree of moral ethics, it must refrain from all forms
of profanation, insult and abuse. Any act with the potential to generate verbal
or physical violence must be deplored and condemned.
To some extent, the law can condemn blasphemy and abuse, and punish insults.
While this is necessary, however, it is not sufficient, as recent history shows only
too well. Aside from the fact that they selectively target the sacred beliefs of
one part of the world, such insults can be used to justify violent retaliation in the
name of self-defence, thereby creating a source of tension and multiple, unpre-
dictable conflicts. In addition to these dangers, such insults open rifts of mistrust
and hatred that may lead to confrontations between communities living in the
same country.
If legal rules alone cannot deal with blasphemy and other insults in the form of
cartoons, writings or paintings, can we simply leave it up to artists to search their
80
own consciences and thereby submit to the throes of remorse? Is it possible to do
evil without hatred, or good without love?
On the subject of remorse, Victor Hugo is known to have been devastated by
the death of his daughter Lopoldine, who drowned in the Seine along with her
husband. He wrote a number of famous poems railing against fate, going so far
as to curse and blaspheme in his anger; then, as time tempered the emotion of
his sobs, he returned to God, exclaiming:
For all are sons of the same father,
We are all the same tears wept by the same eye.

Further on, he adds:


Lord, I realise that Man is crazy
If he dares complain;
Ive stopped accusing, Ive stopped cursing,
But let me weep!

Remorse is a kind of guilty distress that inhabits our hearts once we have com-
mitted our crime, like Abels uncontrollable remorse after he killed his brother
Cain. The great Arab critic Taha Hussein was right when, in a surge of generosity
towards human beings, he wrote:
All I wish on my friend
And all I wish on my enemy,
Were it possible for me to wish him well,
Is that God spare him cause for remorse.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

This goes to show that remorse can sometimes be more painful than criminal
sanctions.
Can we not dream for dreams are not forbidden that one day, thanks to
human beings fertile imaginations and constructive determination, voices will
rise up in every chapel in which the one God is worshipped in order to call for
love in a context of diversity and respect for each and every one of us; that in
every school and university, as places and vehicles for the transmission of know-
ledge, voices will rise up to spread the same message, the same values of toler-
ance and respect for difference, and to shape the human beings and artists of
the future; and lastly that, like the Olympic flame that set off from this legendary
ancient city, an Olympic flame will be lit for friendship between civilisations and
dialogue between the athletes of arts and letters, disciplines which are known
to have been part of the Olympic Games before being abolished by the Roman
Emperor Theodosius in 394?
This noble ideal can be realised only by means of a universal, well-organised
movement promoting the alliance of civilisations, which strikes me as one of the
best ways to reconcile cultures and civilisations and to make art the product
of a harmonious balance between freedom of expression, as a principle that
fosters artistic creativity and respect for others sacred beliefs and symbols. To
my mind, striking such a balance will mean we successfully rise to the challenge
of co-existence and democracy.
81
I would like to finish by quoting two eloquent statements from witnesses of the
First World War, which artists may find inspiring. Firstly, Georges Clemenceau
set himself apart from Jules Ferry, who was advocating colonial expansion in the
name of the superiority of races and civilisations, by declaring from the rostrum
in the Bourbon Palace:
The Hindus, an inferior race? The Chinese, an inferior race? No, the so-called
superior nations have no rights over inferior nations. Let us not attempt to cloak vio-
lence in the hypocritical name of civilisation.

The other statement, from another Georges, this time by the surname of Duhamel,
reinforces my argument. Duhamel, on seeing the shells falling in the trenches of
eastern France, the thousands of wounded piled up in makeshift camps and the
surgeons busy amputating arms and legs, exclaimed:
Civilisation is not to be found in the surgeons knife.
If civilisation is not in the heart of man,
then it exists nowhere.
4. Art can legitimately offend
Dimitris Christopoulos
Assistant Professor, Department of Political Science and History,
Pantheon University, Athens, President of the Hellenic League for Human Rights

Dimitri Dimoulis
Professor of Jurisprudence and Constitutional Law, Law School
Fundao Getlio Vargas, So Paulo, Brazil

The Church will have many clashes with the human rights movement. The Church
is not only for human rights, but surpasses them, since in the position of rights,
which is a legal concept, it puts forward the concept of service. In the position of
what the law permits, it puts forward free service and dedication. Nevertheless, the
Church cannot accept what the leader of this world promotes through the human
rights movement: the abolition of sin. What they want to present as a right is not
respect for the human person but his obliteration; the interdiction for man to feel
his weakness before God, his sinful nature. The impossibility of the human being to
show repentance and be forgiven is to be set about. In other words, the abolition of
moral consciousness and its replacement by legal rules is planned. In the world they
prepare, there will no longer be sins but only legal infringements. But I can say
that for the Orthodox Church, love for art will constitute a criterion of its own abil-
ity to respond to the well-being of its flock because the more our societies become
impersonal and massive, the more the Church must conceive of art as a weapon of 83
defence of the human being against the powers of alienation. I will not accept, of
course, that all art expresses the face of man. I am well aware that much is offen-
sive and strips him bare. However, art remains far and beyond, a loyal ally and a
strong weapon in the battle of the human being in facing depressive circumstances,
in breathing freely and feeling the breath of God.

(Archbishop Christodoulos, Delphi, 5 July 2006)

It appears that the ambivalence in the relationship between religion and art is
rather difficult to overcome: the sacred has always been a source of inspiration
and the reason for the production of masterpieces in all arts. On the other side,
however, the freedom of artistic expression has been severely violated in the
name of religion as much today as in the past. Every society is thus called upon
to strike a balance between these two dimensions, freedom of religion and free-
dom of art. The conflict between them is fundamentally a political matter and not
a theological or an aesthetic issue. Can the sensibilities of religious communities
restrict the freedom of individuals to determine, on their own, what art is? To
what extent can liberated art provoke the religious feelings of devout communi-
ties? Are there any limits and, if yes, how are they set? In the final analysis, how
does democracy balance the two freedoms and to what extent does this balance
qualify a regime as democratic?44

44. These questions were addressed in the international symposium on Art and Sacred Beliefs:
from Collision to Co-existence, organised by the European Commission for Democracy through Law
Blasphemy, insult and hatred

We may agree, by way of introduction, that although religion and art are
doomed to co-exist in conditions of tension, it is important that any solutions
arise from rational consultation between people, believers and non-believers,
and not from court rulings or, even worse, violence. The threat of violence,
however, can easily cause any attempt to balance freedom of art and respect
for religious convictions to deviate, to the detriment of free art. The tribulations
of the Danish cartoons of Muhammad have created a gloomy atmosphere for
freedom of art in Europe. The view that seems to prevail is that freedom of art
cannot allow people to make representations that can reasonably be expected
to offend the religious sensibilities of believers. As we will try to explain, this is
a very risky view for democracy.

One solution, which has been put to the test as much by the Catholic as by the
Christian Orthodox Church, is the revival of the offence of blasphemy that has
been relied upon from time to time in order to censor blasphemous works and
punish their makers and those responsible for their presentation to the public.
In 2006 a Christian Orthodox minister, in his testimony as witness for the pros-
ecution in the trial against the curator of Outlook, an international exhibition of
contemporary art organised in Athens, said: Nobodys personal perversion
can be allowed to qualify as art.45 The exhibition included a painting by the
Belgian painter Thierry de Cordier, which was considered as offensive against
84
Christ. In the end, the art historian and curator who was forced to consent to
withdraw Cordiers painting, as a result of the surge of protests from the Church
and a number of politicians, was acquitted on 10 May 2006. So, this is how
the latest case of art censorship was settled in Greece after a flurry of publicity:
the painting was censored and the curator was acquitted.46 Does this perhaps
mean that all sides can claim victory? Not quite. Do you wish the defendant to
be put in prison? asked the defence counsel of the same minister who testified
as prosecution witness. For my part, I am satisfied that the painting was taken
down, answered the witness.

Let us state the obvious. The right to freedom of expression is non-negotiable. It


is not an absolute right, but it forms an integral part of any society that purports
to be democratic. The limits to this freedom must be sought in the moral dam-
age, suffering or pain it might cause to actual persons. But should such limits
apply in all cases of moral damage? In all cases of suffering? In all cases of
pain? Certainly not. As Ronald Dworkin brilliantly put it, so in a democracy

(www.venice.coe.int) of the Council of Europe in co-operation with the Hellenic League for Human
Rights (www.hlhr.gr).
45. Excerpt from the testimony of M. Epifanios, prosecution witness in the criminal trial of the Outlook
exhibition curator on 10 March 2006 (see the newspaper Elefterotypia, 11 May 2006).
46. This case prompted the publication of a collection of essays, including a detailed account of
art censorship cases in Greece: G. Ziogas, L. Karabinis, G. Stavrakakis and D. Christopoulos (eds),
Aspects of censorship in Greece, Eds. Nefeli, 2008 (. , . , . , .
, . ).
Conference on Art and Sacred Beliefs: from Collision to Co-existence

no-one, however powerful or impotent, can have a right not to be insulted or


offended.47
There is no place in our societies for a generalised right of everyone not to be
offended. For, if such a right existed, we would be heading for a system of
social organisation where any allegation of offence by anyone would become
an obstacle to the exercise of any freedom. Muslims would never be allowed to
build a mosque in Athens because that would sincerely and deeply offend the
sensibilities of Christian residents and church authorities (as it is claimed today),
visual artists would not be judged or appraised by their peers but by those who
take offence at their works, and so on and so forth. In short, in the name of
respecting the sacred convictions of a given community, the possibility of indi-
vidual or collective freedom is abolished. The freedom to be able to prohibit
any offending or ridiculing of our values is not only a sign of personal and pol-
itical immaturity but also a clear expression of intolerance.
A religious Greek professor of law made this statement, which should frankly dis-
arm and reassure all believers who take offence at having their beliefs attacked:
God does not need the support of the prosecutor to confirm His presence, nor
can He be considered as a legally protected interest for He is the beginning and
the end of all legally protected interests.48
To put it simply, whoever offends religion by word or art may well go to hell,
but not to prison. The priest quoted at the beginning of this article affirms that: 85
Nobodys personal perversion can be allowed to qualify as art. But how many
of us would be willing to leave the crucial power of defining art to the (average)
priest (or judge)? If liberal constitutions bestow unreserved immunity on a given
category of activities in view of their artistic nature, then reasonably the key to
the special constitutional protection of any such activity must lie in the diagnosis
of its artistic character. To make this possible, however, one must have a more
or less fixed view of what should or should not qualify as art. And this is even
more difficult.
For any effort to tackle the problems arising from the idea of an unreserved free-
dom of art presupposes an appropriate definition of art, a definition that would
place outside the scope of constitutional immunity any acts, items or situations
that, albeit claiming to be of an artistic nature, appear to infringe fundamental
rights, interests or values. The technique of restriction by definition raises the
question: who is to judge and on what grounds? The history of art is a history
of violent restrictions prompted not by lack of artistic value but by the opposition
of a particular artistic expression to the aesthetic, moral or political preferences
of those in power.

47. R. Dworkin, The right to ridicule, New York Review of Books, Vol. 53/5 (23 March 2006).
48. A. Kostaras, Freedom of art and penal law in Democracy-Freedom-Security [volume in trib-
ute to Ioannis Manoledakis], Eds. Sakoulas, Athens/Thessaloniki, 2005, p. 428 (. ,
: ,
--).
Blasphemy, insult and hatred

Lately, starting from the emblematic story of the Danish cartoons of the prophet
Muhammad, violent restrictions to freedom of art emanate not only from the
blasphemous nature of artistic works against the dominant religion in Europe but
also against the major minority religion. The virulent indignation of part of the
Muslim world at the publication of the cartoons in 2006 and the more subdued
reactions two years later against the documentary film (of extreme-rightist inspir-
ation) Fitna, by the Dutch politician Geert Wilders, frame the question freedom
of expression or freedom to insult? in totally Manichaean terms, as if freedom
of opinion were limited only to compliments and innocuous utterances. Accord-
ing to one of the most classical formulations of the European Court of Human
Rights, however, in a democratic society this freedom involves mainly disturbing
or shocking views.49

In our times, the prevailing view on freedom of art has receded disquietingly
due to fear of Islamic reaction. Evidently, contemporary restrictions are not con-
cerned so much with the outdated cloak of blasphemy as they are with a new
cloak: the dictates of political correctness and the restriction of hate-speech. The
penalisation of blasphemy is no longer fashionable, though it is still used by sev-
eral jurisdictions to remind Europe of its not so distant obscurantist past. Now-
adays, the endeavour to protect beliefs, ethnic groups or religions has shifted to
the penalisation of intolerant or racist speech. But this is actually a retreat:
86 why in the name of offending religion in this case Islam and Judaism are
we accepting prosecutions that would be unthinkable in other contexts?50 Why
should the religious sensibilities of some people command more respect than
the political sensitivities of civil war victims in Spain or Greece who have to put
up with seeing statues of their exterminators in public squares? The only politi-
cally honest answer is that, in the first case, the right to free expression retreats
before the reasonable fear of uncontrollable reactions whereas, in the second
case, freedom of art prevails because reactions can be controlled. Honest as this
answer may be, it is a pure case of normative double standards.

But why do reactions in the name of these religious sensibilities inspire fear for
the cohesion of our societies, whereas others do not? The answer is, once again,
obvious. The social position of Muslim immigrants in Europe and the interna-
tional geopolitical state of affairs in the relationships between East and West,

49. Freedom of expression constitutes one of the essential foundations of such a society, one of the
basic conditions for its progress and for the development of every man. Subject to Article 10.2, it is
applicable not only to information or ideas that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector
of the population. Such are the demands of that pluralism, tolerance and broadmindedness without
which there is no democratic society. Handyside v. United Kingdom, 7 December 1976, para. 49,
www.worldlii.org/eu/cases/ECHR/1976/ 5.html.
50. Let us recall the most extreme example: on 20 February 2006, the British historian David
Irving was sentenced to three years imprisonment by an Austrian court and was actually incarcerated
for a few months for the views he published in one of his books in 1989 on denial of the Jewish Holo-
caust. See www.independent.co.uk/news/europe/irving-gets-three-years-jail-in-austria-for-holocaust-
denial-467280.html
Conference on Art and Sacred Beliefs: from Collision to Co-existence

with emphasis on the Middle East, makes some Muslims susceptible to the lures
of the most reactionary political ideology of our times. The antidotes to the devel-
opment of Islamic fundamentalism, however namely, the equitable social inte-
gration of immigrants and the struggle against imperialist politics in the Middle
East entail an incomparably higher political, ideological and economic price.
By contrast, free art or free expression is the weak link. It can be curtailed at no
political or economic cost.51 Nonetheless, given more careful consideration, the
long-term implications of these restrictions for the conquests of liberal democracy
bode nothing good for the future.

In early 2005, a 61-year-old German businessman thought it a good idea to


write the word Quran on toilet-paper rolls and distribute them to newspapers
and Muslim religious authorities. What most people might have taken as a silly
joke (or mere stupidity) cost its originator a suspended twelve-month prison sen-
tence and 300 hours of compulsory community work. The perpetrator had the
misfortune to be judged in 2006, when the scandal of the Danish sketches
depicting the prophet Muhammad was in full swing. Under the pressure of
events and a related official protest by the Republic of Iran, the German court
felt obliged to issue a ruling of a punitive nature.52

So severe a penalty for such a mindless act may cause surprise and legal or
political indignation. It is part of the sway of recent proposals and trends to
revive the provisions of blasphemy in European countries (a side effect of the 87
wider trend towards a law of zero tolerance in order to terrorise and ultimately
annihilate opponents and dissidents). Such a measure is obviously deprived of
justification in a constitutional state.53

Half a century earlier, on the other side of the Atlantic, the US Supreme Court
issued an injunction against projection of the motion picture Il miracolo by
Roberto Rossellini, featuring Anna Magnani and Federico Fellini. The motion
picture presented the sad story of a half-witted peasant woman who thought she
was the Virgin Mary and was impregnated by a stranger whom she took to be
Joseph, exposing herself to social ridicule and exclusion. According to its direc-
tor, the film was of a mystic nature and was clearly inspired by Christendom.
But this failed to convince the Vatican or the Catholic ministers of New York.

51. It was no accident that among the first who hastened to voice their understanding for Muslims
in the affair of the Danish sketches were the leaders of the occupation forces in Iraq: Bush and Blair.
52. Ph. Lenhard, Blasphemie und Alltag, Konkret, No. 2 (2006), p. 21.
53. See D. Christopoulos, The incongruity of penalizing blasphemy. On the reactions of the Muslim
world against the Danish sketches, in the newspaper Avgi (24 February 2006) [ . ,
.
, ]; on the lack of political and crime-preventive grounds of the penal
operation of blasphemy, see D. Dimoulis, Arguments for repealing offences against religious
peace ( ) (2005),
www.hlhr.gr/papers/dimoulis0.doc. See also D. Dimoulis, Blasphemy, a feudal remnant in
religious state in P. Dartvelle et al., The Right to Blasphemy, Black List, Athens, 2000, pp. 42-45
(. , : : . ,
. , . , : . (.), a).
Blasphemy, insult and hatred

Following strong and persistent protests by the latter, the states Censure Board
designated the picture as sacrilegious and caused the required permission of
projection to be revoked.54
When the Supreme Court examined the case in 1952, it ruled that the state law
that permitted the censorship of sacrilegious pictures was incompatible with the
federal constitutional provisions on freedom of speech. It held that: It is not the
business of government in our nation to suppress real or imagined attacks upon
a particular religious doctrine, whether they appear in publications, speeches,
or motion pictures.55
There should be nothing original about this ruling. A state adhering to its con-
stitutional provisions in its respect for freedom of speech and proclaiming its
religious neutrality cannot meddle in private disputes about whether someone
offended the metaphysical views of another. If certain legal limits are infringed,
the provisions protecting honour and reputation apply, giving grounds for com-
pensation and eventually criminal liability. Beyond that, the state ought not to,
and may not, interfere in the private sphere by telling people what they may or
may not say or who is allowed to say what.
Comparison of the two cases implies once more that, in fact, the law is what
judges decide. Had a different judge, state of affairs or religion been involved,
88 the ruling would probably also have turned out differently. The legally and politi-
cally infuriating ruling of the German court is nevertheless very appealing to
common sense. A man who makes toilet paper of a religions sacred texts in pub-
lic may perhaps not deserve imprisonment but surely ought to be reprimanded, if
not given a good thrashing, as common sense would have it.
Indeed, we all know that certain things are better not written or said. This state-
ment undermines absolute liberalism and the theory of total state abstention by
indicating a need to draw lines and produce arguments to justify them.56 To put
it more explicitly, disapproval of censorship does not do away with the real need
to set restrictions on speech.
The above discussion implies that the liberal claim for freedom of speech is
fraught with problems. The liberal position ignores the need to set limits and,
by decrying censorship in general, fails to engage in the crucial and difficult
discussion of who is responsible for setting limits and on what grounds. As we
saw, one particular type of command of silence has to do with sacredness. A

54. Joseph Burstyn Inc. v. Wilson, 343 U.S. 495. On the content of the film, see www.imdb.com/
title/tt0040092.
55. Joseph Burstyn Inc. v. Wilson, 343 U.S. 505.
56. The US Supreme Court affirms: The Constitution says that Congress (and the States) may not
abridge the right to free speech. This provision means what it says. We properly read it to permit
reasonable regulation of speech-connected activities in carefully restricted circumstances. (Tinker
et al. v. Des Moines, 393 U.S. 513). This comment illustrates the inefficacy of absolute liberal-
ism but also a lack of will on part of the court to define what is reasonable and which are the
circumstances of censorship.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

politically dominant group prohibits utterances of a certain kind in order to pro-


tect what it considers as sacred and holy, that is, in order to assert its power over
those wishing to question the order of things. The outcome in normative terms
is ex-ante and ex-post censorship. It is by understanding the rationale of censor-
ship in individual cases that we are able to evaluate it and then take a stance
with regard to its purpose.

The comparative study of various jurisdictions indicates significant differences in


the degree and requirements of protection against blasphemy.57 We no longer
encounter laws threatening blasphemers with having their tongues and lips
pierced as decreed by Louis IX in 1263, causing even the Pope to protest.58 It
is also a fact that the gradual secularisation of government leads to a retreat of
blasphemy.59

In some countries indeed, courts have exhibited a degree of courage that was
lacking in the legislature and have found the laws on blasphemy to be counter
to the constitution. By such means, they allowed application of the common rules
restricting freedom of expression in the religious domain, instead of the excep-
tional censorship mechanism of blasphemy. This has been the case in the USA
in recent decades, with a series of rulings gradually extending the borders of
freedom of speech and thus preventing trials for offending religion.60 A similar
development took place in Italy in 2000 when, after some hesitation in the case
law, the Constitutional Court found the criminal offence against state religion, 89
which protected only the Catholic Church, to be counter to the constitution.61

Internationally too, it appears that sentences are being reduced and legislation is
becoming more liberal, though this is only a rough guess for we lack clear data,
and flare-ups about the occasional scandal may still occur. Despite all this, a ban on
offending the divine by word or art still applies in many countries, which amounts
to recognising the divine as an independent constitutional-legislative value, as older
juridical texts point out.62 This is what contemporary legal debate and court rulings
try to conceal, with constructions on the protection of honour or religious peace, in
their effort to find liberal grounds to justify the ban of blasphemy.63

But this is only a subterfuge aiming to justify what cannot be justified in liberal
terms the protection of the divine in officially secularised states and to issue

57. A. Cabantous, Histoire du blasphme en Occident, XVIe-XIXe sicle. Paris: Albin Michel,
1998, F. Hildesheimer, La repression du blasphme au XVIIIe sicle in J. Delumeau (ed.), Injures et
blasphmes, Paris: Imago, 1989, pp. 63-81.
58. A. Cabantous, Histoire, p. 58.
59. Ibid., pp. 150-2.
60. Levy L., Blasphemy. Verbal Offense against the Sacred, from Moses to Salman Rushdie, Chapel
Hill, NC: University of North Carolina Press, 1995, pp. 522-33.
61. Corte costituzionale, ruling 508, 20 November 2000 (www.giurcost.org/
decisioni/2000/0508s-00.html).
62. See references in Hildesheimer, La repression du blasphme au XVIIIe sicle, pp. 63-4.
63. For criticism of these opinions, see Dimoulis, Blasphemy, a feudal remnant in religious state,
pp. 24-32.
Blasphemy, insult and hatred

decisions finding favour with Christian lobby groups. For instance, if we accept
the reasoning of the European Court of Human Rights to the effect that a ban
on screening a film that would scandalise the Christian Catholic majority of
the inhabitants of Tyrol64 aims to protect religious peace and the honour of the
said Catholics, we will also have to ban anything that might be in the nature of
aggravating terrorists in order to ward off their violent reactions. In other words,
in view of the protest of an oversensitive person (who in this case pays the
cinema ticket only to be scandalised!), we will have to curtail the exercise of an
entire series of other peoples rights and at the same time adopt a set of rules
penalising any challenge to the views and convictions of other social groups,
ending up with a society of generalised censorship.65
In the final analysis (despite appearances to the contrary), in order to speak
convincingly against censorship and make an ideologically robust and realistic
case for free art, it does not suffice to be liberal-minded. It requires a theoretical
and ideological stance of opposition and resistance to a specific power scheme
that imposes public devotion, one that controls and scares people away from
thinking about the divine and, by extension, about the secular authorities that
represent it and draw their power from this representation.
This is what the general liberal imperative of freedom of speech cannot (or cares
not to) understand and that is why it is at a loss when asked to set criteria for
90 censorship. It makes no sense to be in favour of freedom of expression solely
as a matter of principle. There are specific power structures in whose interest
it is to silence certain kinds of discourse in particular domains: we can only be
against such power structures. And this is what those who have reasons to resist
are doing. In other words, the crux of the matter in the prohibition of blasphemy
and the protection of freedom of art consists in the social antagonism between
asymmetric social forces. With the outcome remaining open

64. Otto-Preminger-Institut, 20 September 1994, n. 56, Revue trimestrielle des droits de lhomme,
1995, p. 464.
65. In legal terms, the Courts ruling confuses the operation of fundamental rights as imperatives of
state abstention from the individuals sphere of freedom with the obligation of the state to intervene in
third-party rights that encroach on other individual rights. The Court converted the religious freedom of
Catholics into an obligation for Catholics to respect it, under threat of public punishment, thus revers-
ing the roles of state and citizens. See also F. Rigaux, La libert dexpression et ses limites, Revue
trimestrielle des droits de lhomme, 1995, pp. 408-10.
5. Whose responsibility? The case of Iran
Karim Lahidji
Former Teheran barrister, President of the Defenders of Human Rights Center (DHRC) in Iran,
Vice-President of the International Federation for Human Rights (FIDH)

Is there such a thing as an ethic of responsibility for artists? First of all, let us
recall the causal relationship between freedom and responsibility, which is based
on the dialectic between individual freedom and the rights and freedoms of others.

Limits on freedom of expression


It is in this context that the International Covenant on Civil and Political Rights
and the European Convention on Human Rights restrict both freedom of expres-
sion and freedom of religion and belief, in the light of the need to respect others
rights and freedoms. Article 18 of the Covenant says:
1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in public 91
or private, to manifest his religion or belief in worship, observance, practice and
teaching.
2. No one shall be subject to coercion which would impair his freedom to have or
to adopt a religion or belief of his choice.

Article 18 of the Universal Declaration of Human Rights is even more explicit


in this respect, stating that freedom of religion also includes the freedom
to change [ones] religion or belief. On the subject of freedom of expression,
Article 19 of the Covenant is also clear:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art or through any other
media of his choice.

Accordingly, like every other citizen, artists have the right to express themselves,
impart their ideas and publish their works. However, Article 19 goes on to say
that the exercise of these freedoms
carries with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and are
necessary:
For the respect of the rights or reputations of others;
Blasphemy, insult and hatred

For the protection of national security or of public order, or of public health or


morals.

Article 10 of the European Convention on Human Rights imposes similar restric-


tions on freedom of expression, but states that such measures must be prescribed
by law and must be necessary in a democratic society. This stipulation is
central to our discussion, because freedom of expression is the cornerstone of
democracy.

Accordingly, the Parliamentary Assembly of the Council of Europe reaffirmed in


its Resolution 1510 of 28 June 2006 that there cannot be a democratic society
without the fundamental right to freedom of expression, recalling the case law
of the European Court of Human Rights in Strasbourg as follows:

[freedom of expression] is not only applicable to expressions that are favourably


received or regarded as inoffensive but also to those that may shock, offend or dis-
turb the state or any sector of the population.

In respect of blasphemy, it is true that on several occasions the European Court


of Human Rights has adopted a liberal interpretation consistent with that of the
Council. In the case of Handyside v. United Kingdom, the Court handed down
this decision on 7 December 1976:
92
Freedom of expression constitutes one of the essential foundations of [a democratic
society]; it is applicable ... also to [ideas] that offend, shock or disturb.

The Strasbourg judges have not always confirmed this approach, however, and
one example is the case of Otto-Preminger-Institut v. Austria. Following an applica-
tion from the Catholic Church against the screening of a film by Werner Schroeter,
Council in Heaven, the film was confiscated in accordance with a decision by the
Innsbruck Regional Court. The projection company lodged an application with the
Strasbourg Court. In a judgment of 20 September 1994, the Court, referring to
the phrase duties and responsibilities set out in Article 10.2 of the Convention,
held that, in order to keep the peace and safeguard religious freedom, states have
to protect religious beliefs from improper and gratuitously offensive attacks. The
Strasbourg judges consequently rejected the complainants application.

Accordingly, in its preliminary report on blasphemy of 23 March 2007, the


Venice Commission emphasised that, in a democratic society, freedom of
expression includes the right for an individual to impart to the public controver-
sial views. With reference to Article 9 of the European Convention on Human
Rights, however, the Venice Commission also notes that freedom of expression
must be:

weighed against the need to allow others the enjoyment of their right to respect for
their religion and beliefs as well as against the general interest to preserve public
order (including religious peace).
Conference on Art and Sacred Beliefs: from Collision to Co-existence

Article 18.3 of the International Covenant on Civil and Political Rights lays down
similar restrictions in respect of freedom of religion:

Freedom to manifest ones religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order, health
or morals, or the fundamental rights and freedoms of others.

Against this backdrop, Article 20 of the Covenant prohibits any propaganda


for war and any advocacy of national, racial or religious hatred that consti-
tutes incitement to discrimination, hostility or violence.

It may be noted that religious insults and incitement to religious hatred are pro-
hibited as related offences. However, criticism of religious beliefs must not be
regarded as an attack on the rights or reputations of others as referred to in
Article 19.3 of the Covenant. In its judgment of 31 January 2006 in the case of
Giniewski v. France, the European Court of Human Rights held that criticisms of
doctrine do not necessarily contain attacks on religious beliefs as such.

Likewise, the Parliamentary Assembly of the Council of Europe notes in Reso-


lution 1510 that, on the one hand, religious communities are allowed to defend
themselves against criticism or ridicule in accordance with human rights legislation
and norms, but, on the other hand, the culture of critical dispute and artistic free-
dom has a long tradition in Europe and is considered as positive and even neces-
93
sary for individual and social progress, considering that only totalitarian systems
of power fear them. Lastly, the Assembly emphasises that critical dispute, satire,
humour and artistic expression should, therefore, enjoy a wider degree of freedom
of expression and recourse to exaggeration should not be seen as provocation.

It must be recognised that most protests and demonstrations against freedom of


expression or artistic freedom, protests which are often violent and aggressive,
are organised by extremist and even fanatical groups, or states that respect
neither freedom of expression nor freedom of belief. The organisers of such
mass rallies have a good understanding of crowd psychology and use religious
beliefs for political ends.

Iranian hostility to freedom of expression


The fatwa against Salman Rushdie, author of The Satanic Verses, issued by the
Ayatollah Khomeini in February 1989, was a political act from the outset. The
novel had not yet been translated into Persian or Arabic when the fatwa was
issued, so Khomeini, who did not speak any foreign languages, could not have
read it. The fatwa consequently did not comply with sharia law, since Khomeini
could not have given his verdict (fatwa) with sincerity. Moreover, the legitimacy
of such a death sentence, pronounced against a citizen of a UN member state
by a Supreme Leader who was also the head of another UN member state, is
questionable.
Blasphemy, insult and hatred

The international community has misunderstood, if not wilfully ignored, the polit-
ical and legal nature of the Iranian state. In fact, the Islamic Republic of Iran is a
theocratic oligarchy in which the enjoyment of rights and freedoms is conditional
on subscribing to an official Islamist ideology justified by divine right.

The right to govern, legislate and judge, for instance, is conferred by the cler-
ical authorities, whom the Constitution designates as the supreme branch of
power, placing them above the executive, legislative and judiciary. This prin-
ciple, known as Velayat-e-Faqih (transcendence of the religious leader), is the
cornerstone and basis of the regimes legitimacy.

Paradoxically, the Constitution of the Islamic Republic of Iran also provides for a
president of the republic, elected by universal suffrage, and a parliament whose
members are elected by the same means.

Provision is also made for a Guardian Council, comprising six religious leaders
appointed by the Supreme Leader, to supervise presidential and parliamen-
tary elections. In fact, this Council selects both presidential and parliamentary
candidates in advance, on the basis of purely political and religious criteria,
and publishes a list of approved candidates. That shortlist is submitted to univer-
sal suffrage, and the people consequently have no other choice.

94 Notwithstanding this pre-election purge, the president elected by the people


must then be appointed by the Supreme Leader in order for his election to be
valid. The president is therefore merely the head of government, answerable to
parliament, while the head of the executive is the Supreme Leader, who enjoys,
inter alia, all the powers of a head of state, including authority over the armed
forces, without being answerable to parliament.

As for the legislature, the parliament elected by the people from a shortlist must
have regard to the official ideology of the Islamic Republic of Iran. Accordingly,
all laws passed by parliament must be submitted to the Guardian Council so that
its six religious members can check that they comply with Islamic precepts. If a
majority of the religious leaders on the Council consider a law passed by parlia-
ment to be incompatible with Islamic precepts, it is deemed null and void. Yet
these precepts are not defined in either the Constitution or any other legal instru-
ment. Nor does the Guardian Council have to give reasons for its decisions.

Lastly, the judiciary is headed by a religious leader appointed by the Supreme


Leader. The head of the judiciary in turn appoints a religious leader as president
of the Supreme Court, and another as attorney-general.

The peoples elected representatives are thus supervised by the clerics, who
do not have a political mandate obtained by universal suffrage. The Supreme
Leader, who governs as the 12th Imams representative, exercises ultimate
authority. Iran is therefore a state in which religion has become an ideology, and
theocracy is coupled with oligarchy.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

It is on this basis that its Supreme Leader, its sovereign by divine right, takes
the liberty of sentencing an individual to death even though the latter does not
belong to his people or his community (Ummah) or live in his country.

In September 1988, four months before the fatwa against Rushdie, this deposi-
tary of divine legitimacy and public authority ordered a purge in which more
than 3 000 political prisoners and prisoners of conscience were executed after
partially serving the prison terms to which they had been sentenced following
their refusal to repent and swear allegiance to the regime.

Twelver Shiite Islam (Esna Ashari), practised by 80% of the population, is the
official state religion of this republic, but non-Shiite and non-Twelver Iranians
do not enjoy the same rights as their Twelver compatriots. Non-Muslim Iranians
have even fewer rights. Christians, Jews and Zoroastrians are deemed to be
recognised minorities, with the status of second-class citizens. Other minorities
and atheists do not enjoy any social or political rights, or freedom of conscience,
and nor do they have access to higher education or the civil service.

It follows that the freedom of conscience and religion set out in Article 18 of the
International Covenant on Civil and Political Rights, ratified by Iran in 1976, is
not recognised by the Islamic Republic of Iran. Worse still, exercising the right
to manifest ones religion or beliefs can attract severe penalties, including the
death penalty. Indeed, the Iranian authorities recognise only positive conversion:
95
a non-Muslim Iranian can convert to Islam, but the converse is not permitted
and is severely punished. An Iranian who has a Muslim father but converts to
another religion or commits apostasy may be sentenced to death. Furthermore,
blasphemy carries the same penalty.

Balancing the freedoms


Unfortunately, the Iranian example is not an isolated case: in a number of Mus-
lim countries, along with many non-Muslim countries, as yet neither the state nor
the religious authorities show tolerance or demonstrate a political commitment to
balancing freedom of expression with freedom of thought, conscience and reli-
gion, tolerating criticism in the context of debate and public statements, particu-
larly in the media, or respecting the dignity, rights and freedoms of all citizens
regardless of their religious beliefs and intellectual opinions.

Let us come back to our democratic societies, which must permit open debate
on matters relating to religion and religious beliefs (Recommendation 1805 of
29 June 2007 of the Parliamentary Assembly of the Council of Europe).

In addition to these recommendations, however, given that Muslim communities


in a number of European countries are subject to various forms of social and
economic discrimination, states need to bear in mind that, in a democracy, the
principle of freedom of conscience and religion has to go hand in hand with the
principle prohibiting discrimination on religious or spiritual grounds.
Blasphemy, insult and hatred

On the other hand, religious groups whose fundamentalism is criticised in a


speech or a written or artistic work must never take it upon themselves to incite
the public to confrontation or issue death threats against writers or artists.
Lastly, in a democratic society, individuals must be regarded as being capable
of autonomy and independent thought. When an idea is attacked in a speech,
article or literary or artistic work, it is wholly legitimate for its proponents either
to respond, even in a shocking or offensive manner, or to reflect upon the mes-
sage in question and possibly be persuaded by it, thus changing their minds.

96
6. The intersection between freedom of expression and
freedom of belief: the position of the United Nations
Ariranga G. Pillay,
Legal Consultant, former Chief Justice of Mauritius, Vice Chairperson
and member of the UN Committee on Economic, Social and Cultural Rights

Given that all human rights are universal, indivisible, interdependent and inter-
related, it follows that freedom of expression and freedom of belief, being two
fundamental human rights, are of equal value and are related to, and dependent
on, each other, must co-exist in harmony with each other and must be respected,
protected and promoted in equal measure.
Neither right should, however, be respected, protected or promoted at the
expense of the other. One persons freedom of expression, through any known
expressive medium, has to co-exist in harmony with the exercise of freedom of
belief (including theistic, non-theistic, atheistic and agnostic or any other belief)
by others, and vice versa.
Moreover, the co-existence of these two rights implies that permissible limita- 97
tions, or restrictions on specific grounds, may be placed on the exercise of either
right provided that they do not put in jeopardy the very right itself. Limitations
or restrictions must not, however, be imposed for discriminatory purposes or be
applied in a discriminatory manner.

Permissible restrictions on freedom of expression


or freedom of belief
The International Covenant on Civil and Political Rights (the Covenant) pro-
vides that in the exercise of their freedom of either belief or expression, indi-
viduals have (for example) to respect the rights of others, whereas the exercise
of freedom of expression carries with it special duties and responsibilities (vide
Articles 18.3 and 19.3) that indeed permit a restricted range of compelling
countervailing considerations, interests or values or pressing social needs to be
invoked to justify restrictions on the rights to freedom of belief and free speech.
Any limitation on the right to free speech or the right to freedom of belief is only
permissible if it is convincingly established in evidence by a compelling counter-
vailing consideration, interest or value or pressing social need which it is neces-
sary for the state to protect.
The scope of the restriction on the right to free speech or the right to freedom of
belief must, however, be proportionate to the consideration, interest, value or
Blasphemy, insult and hatred

social need which ought to be protected in order that the restriction does not put
in jeopardy that very right itself.

The 2007 Report of the UN Special Rapporteur


In her last report of July 2007, the UN Special Rapporteur on Freedom of Reli-
gion or Belief, Ms Asma Jahangir (AJ), referred to the joint press statement issued
by her and the UN Special Rapporteur for the Promotion and Protection of the
Right to Freedom of Opinion and Expression, Mr Ambeyi Ligabo, along with the
UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimina-
tion, Xenophobia and Related Intolerance, Mr Doudou Dine (DD) (together, the
special rapporteurs), in response to what they called the offensive publication
of cartoons of the prophet Muhammad by the media in some countries in 2005.
In that statement, the three special rapporteurs had expressed concern at the
grave offence caused by the cartoons and at the violent response provoked by
them. While accepting that freedom of religion and freedom of expression must
be equally respected, they underlined the fact that the exercise of the right to
freedom of expression carries with it special duties and responsibilities.
Such an exercise requires, according to the special rapporteurs, good judg-
ment, tolerance and a sense of responsibility. Moreover, while the peaceful
98
expression of opinions and ideas should always be tolerated to promote not
only a free flow of news and information, within and across national frontiers,
but also debate and dialogue,
the use of stereotypes and labelling [as in the case of the published cartoons]
that insult deep-rooted religious feelings do[es] not contribute to the creation of
an environment conducive to constructive and peaceful dialogue among different
communities.

Joint report of the special rapporteurs


In their joint report of September 2006, AJ and DD (special rapporteurs) restated
that the right to freedom of religion or belief in international law does not include
the right to have a religion or belief that is free from criticism or ridicule; and the
right to free speech can legitimately be restricted for expressions that not only
do not respect the right to freedom of religion or belief of individuals, groups of
individuals or communities, but also incite imminent acts of discrimination, hostil-
ity or violence against them on the basis of their religion (vide Article 20.2 of the
Covenant). The threshold for the acts mentioned in Article 20.2 of the Covenant
is, according to AJ and DD, relatively high since the acts must constitute advo-
cacy of national, racial or religious hatred.
AJ, in her 2007 Report, also cautioned that any attempt to lower this threshold
would be counterproductive and would promote a climate of religious intoler-
ance since it would not only shrink the frontiers of free expression but also limit
freedom of religion or belief itself.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

Both AJ and DD in their joint report, however, agreed that the question of whether
any criticism, derogatory statement, insult or ridicule of one religion may actu-
ally have a negative impact on the right to freedom of religion of individuals,
groups of individuals or communities can only be determined objectively and, in
particular, by examining whether the different aspects of the manifestation of the
right to religion on their part have indeed been negatively affected.
In other words, it is for an independent and impartial judiciary to strike a fair
balance on the particular facts of a given case between the competing rights to
free speech and to freedom of religion, in light of the permissible and restricted
limitations placed on such rights.
Both AJ and DD also took the view that the published Danish cartoons
seem to reveal intolerance and absence of respect for the religion of others, particu-
larly in the aftermath of 11 September 2001 and may constitute threats to the reli-
gious harmony of a society and the source of incitement to discrimination, hostility
or violence on the basis of religion

under Article 20.2 of the Covenant.

Blasphemy laws
In her report of July 2007, AJ made certain interesting observations on blas-
phemy laws. She deplored the fact that blasphemy laws are used in a discrim- 99
inatory and disproportionate manner to punish members of religious minorities,
dissenting believers and non-theists or atheists, and to censure all inter-religious
and intra-religious criticism.
AJ agreed with the Parliamentary Assembly of the Council of Europe, which rec-
ommended in 2007 that blasphemy as an insult to religion should be decrimin-
alised and that instead statements should be penalised that call for individuals,
groups of individuals or communities to be subject to hatred, discrimination or
violence on ground of religion or any other ground.
AJ suggested that a useful alternative to blasphemy laws would be to legislate
to protect individuals against advocacy of national, racial or religious hatred
(including, possibly, hatred for lack of a religious belief) where such hatred con-
stitutes incitement to imminent acts of discrimination, hostility or violence under
Article 20.2 of the Covenant.

Defamation of religions
AJ also considered, in her report of July 2007, that criminalising defamation of
religions would: (a) be difficult, especially on account of the existence of a large
number of religions and beliefs and of the differences of opinion among their
believers; (b) be counterproductive because it might create a climate of intoler-
ance, fear and persecution against religious minorities, dissenting believers and
non-theists or atheists; and (c) stifle legitimate debate, discussion or research on
Blasphemy, insult and hatred

religious practices and laws that might infringe human rights, thus having also a
negative impact on free speech.

After all, the right to freedom of religion or belief protects individuals, groups of
individuals or communities, but it does not protect religions or beliefs as such,
least of all religious or other ideas.

In this regard, it is interesting to note that section 29J of the UKs Racial and
Religious Hatred Act 2006, which makes it illegal to stir up hatred against indi-
viduals by reason of their religious belief or lack of it, expressly specifies that, in
order to protect free speech, nothing in this Act should be interpreted in any way
that would restrict debate or prevent criticism of any religious belief.

Actual restrictions on freedom of expression or freedom of belief


We now examine the interplay between the right to freedom of belief or the right
to freedom of expression and the permissible and restricted limitations placed
on such a right under Articles 18.3 and 19.3 of the Covenant, since it is the
interaction between a particular right and the limitations placed on it that deter-
mines the actual scope of enjoyment of that right. Reference will, in this connec-
tion, be made to two important decisions of the Human Rights Committee (the
Committee).
100

Ross v. Canada (2000)

In Ross v. Canada (2000), the author of the communication, a teacher, claimed


to be a victim of violation by Canada of Articles 18 and 19 of the Covenant,
since he was transferred to a non-teaching position after having been put briefly
on leave without pay for allegedly having expressed in public, whilst off-duty,
anti-Jewish views and denigrated the Jewish faith, in defence of his Christian
religion.

The Committee first observed that, in accordance with Article 19.3 of the
Covenant, any restriction on the right to freedom of expression must cumulatively
meet several conditions specified therein. Second, the loss of a teaching position
by the author was, according to the Committee, a significant detriment, even if
no, or only insignificant pecuniary damage, was incurred. Since this detriment
was imposed on the author on account of the expression of his views, this restric-
tion must be justified under Article 19.3 of the Covenant.

The Committee next examined whether the restriction on the authors right of
freedom of expression met the conditions of Article 19.3, namely that it must
be provided by law, it must address one of the aims set out therein (viz respect
for the rights and reputations of others; protection of national security or pub-
lic order; or protection of public health or morals) and it must be necessary to
achieve a legitimate purpose.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

With regard to the requirement that the restriction must be provided by law, the
Committee had no difficulty in finding that there was a legal framework for the
proceedings leading to the removal of the author from a teaching position.
In determining whether the restrictions placed on the authors freedom of expres-
sion were applied for the purposes set out in Article 19.3, the Committee noted
that such restrictions may be permitted in a case of respect for the rights or repu-
tations of others (meaning other persons or a community as a whole) and
that both the Board of Inquiry and the Supreme Court [of Canada] found that the
authors statements were discriminatory against persons of the Jewish faith and
ancestry and that they denigrated the faith and beliefs of Jews and called upon true
Christians to not merely question the validity of Jewish beliefs and teachings but to
hold those of the Jewish faith and ancestry in contempt as undermining freedom,
democracy and Christian beliefs and values.

In light of such findings, the Committee came to the conclusion that the restric-
tions imposed on the author were for the purpose of protecting the rights or
reputations of people of Jewish faith, including the right to have an education
in the public school system free from bias, prejudice and intolerance.
The final issue decided upon by the Committee was whether the restriction on the
authors freedom of expression was necessary to protect the rights or reputations
of people of the Jewish faith.
The Committee recalled that the exercise of the right to freedom of expression 101

carries with it special duties and responsibilities that are of particular relevance
within the school system, especially with regard to the teaching of young stu-
dents. Given that the Supreme Court of Canada found that there was a causal
link between the expressions of the author and the poisoned school environ-
ment experienced by Jewish children, the removal of the author from a teach-
ing position could be considered a restriction necessary to protect the right and
freedom of Jewish children to have a school system free from bias, prejudice
and intolerance. Moreover, since the author was appointed to a non-teaching
position after only a minimal period of leave without pay, the restriction was not,
in the opinion of the Committee, disproportionate (that is, it did not go any fur-
ther than what was necessary to achieve its protective object). Consequently, the
facts did not disclose a violation of Article 19.
As for the authors claims under Article 18 of the Covenant concerning his
right to freedom of religion, the Committee noted that the actions taken against
the author were not directed at his thoughts or beliefs per se, but rather at the
manifestation of those beliefs.
Since the freedom to manifest religious beliefs may be subject to limitations that
are prescribed by law and are necessary to protect the fundamental rights and
freedoms of others, the issues under Article 18.3 are therefore substantially the
same as under Article 19.3. Consequently, the Committee held that there was
no violation of Article 18.
Blasphemy, insult and hatred

It is significant that the Committee also stressed that restrictions placed on the
freedom of expression for the respect of the rights of others (meaning other per-
sons or a community as a whole, under Article 19.3 of the Covenant) were also
permitted under Article 20.2 of the Covenant in order to uphold the Jewish com-
munities right to be protected from religious hatred since the public statements
of the author were amply found to be of such a nature as to raise or strengthen
anti-Semitic feeling, as was also the case in Faurisson v. France (1996).

Faurisson v. France (1996)


In Faurisson, the author of a communication, a professor of literature, claimed
a violation of his right to free speech after having been convicted under the
Gayssot Act (hereafter, the Act) of denying certain aspects of the Holocaust in
an interview published in a magazine.

The French courts had examined the statements made by the author and came
to the conclusion that the author was not engaged in historical research, but that
his statements were of such a nature as to raise or strengthen anti-Semitic ten-
dencies. In a strong concurring opinion, three members of the Committee stated
that, although the Act was too broad in its objective and would appear to pro-
hibit even publication of bona fide research connected with matters decided by
the Nuremburg Tribunal in order to protect the right of others to be free from
102
incitement to anti-Semitism, and was thus capable in abstracto of being dispro-
portionate in its impact, they were concerned only with the restrictions placed
on the freedom of expression of the author by his conviction for his statements
in the interview.

The restrictions on freedom of expression permitted under Article 19.3 of the


Covenant may, they went on to point out, relate to the interests of other persons
or a community as a whole, especially when the right protected is the right to
be free from racial, national or religious incitement under Article 20.2 of the
Covenant. They consequently held that the restrictions on the authors freedom
of expression in the particular circumstances of the case
did not curb the core of his right to freedom of expression, nor did they in any way
affect his freedom of research; they were intimately linked to the value they were
meant to protect the right [of the Jewish community in France] to live free from fear
of incitement to racism or anti-Semitism and thus met the proportionality test and
were necessary in order to protect the right of others.

The following pertinent observations were also made by the three distinguished
members:
a. There may be circumstances in which the right of a person, a group of persons
or a community to be free from incitement to discrimination, hostility or violence on
grounds of race, religion or national origin cannot be fully protected by a narrow,
explicit law on incitement that falls squarely within the ambit of Article 20.2 of the
Covenant.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

b. In a particular social and historical context, statements that do not meet the strict
legal criteria of incitement may, however, be shown to constitute part of a pattern of
incitement against a specific racial, religious or national group, especially when it
is borne in mind that those interested in spreading hostility and hatred often adopt
sophisticated forms of speech that may not always be punishable under an existing
law against racial, national or religious incitement, even though their effect may be
as pernicious as explicit incitement, if not more so.

c. The power given to state parties under Article 19, paragraph 3, to place restric-
tions on freedom of expression, must not be interpreted as a licence to prohibit
unpopular speech, or speech that some sections of the population find offensive.
Much offensive speech may be regarded as speech that impinges on one of the val-
ues mentioned in Article 19, paragraph 3a or b (the rights or reputations of others,
national security, public order, public health or morals).

d. The Covenant therefore stipulates that the purpose of protecting one of those
values is not, of itself, sufficient reason to restrict expression. The restriction must be
necessary to protect the given value. This requirement of necessity implies an ele-
ment of proportionality. The scope of the restriction imposed on freedom of expres-
sion must be proportional to the value which the restriction serves to protect. It must
not exceed that needed to protect that value. As the Committee stated in its General
Comment 10, the restriction must not put the very right itself in jeopardy.

Conclusions
The position of the UN is, in my opinion, practically the same as that of the 103

European Court of Human Rights. In this regard, we may usefully refer to, inter
alia, three decisions of the Court that adopt the same reasoning as the Com-
mittee and reach the same conclusion on similar facts.

In Otto E.F.A. Remer v. Germany (1995), a conviction for incitement to racial


hatred by publishing materials denying the gassing of Jews in Nazi Germany
was held to be an interference with the applicants right to free speech, but was
justified and necessary in a democratic society for the protection of the rights
and reputations of others.

In Otto-Preminger-Institut v. Austria (1994), a film portraying God, Jesus and


Mary in a manner that could have been deeply offensive to Christians was con-
fiscated by the authorities. The Strasbourg Court held, by a majority, that the
right to freedom of expression carries with it certain duties and responsibilities,
and that the restriction of such a right was justified and necessary in that it had
the legitimate aim of protecting the rights of Christians.

The Court stressed the duty of those who exercise the right to free speech to
avoid expressions that do not contribute to public debate and are gratuitously
offensive to others. See also Wingrove v. U.K. (1996), where the Judges in
Strasbourg decided that state authorities are in a better position than the inter-
national judge to give an opinion as to what is required nationally to prevent
offence to persons of particular religious beliefs.
Blasphemy, insult and hatred

The duty and responsibility of those who exercise the right to free speech to
avoid expressions that do not contribute to public debate and are gratuitously
offensive to others, is particularly important when several religions co-exist in a
given country. It will then be necessary for the state authorities, in furtherance of
their positive obligation to comply with international standards:
a. to respect the rights of individuals, groups of individuals or communities;
b. to protect them from any quarter against any advocacy of religious hatred that
constitutes imminent acts of discrimination, hostility or violence against them and
take remedial action; and
c. to promote a culture of inter-religious tolerance and harmony.

To attain these legitimate objectives, the state will thus be required to impose jus-
tifiable and proportionate restrictions on the right to free speech, as was done in
Otto Preminger and Wingrove, cited above, in order to reconcile the interests of
the various religious groups or communities in a democratic society, in accord-
ance with the values of pluralism, tolerance and broad-mindedness.
It should come as no surprise that the stand of the UN is substantially identical to
that of European Court of Human Rights, given that the articles relating to free-
dom of expression and freedom of belief in both the Covenant and the European
Convention on Human Rights (the Convention) are couched in almost identical
104 terms and that those countries which have ratified the Covenant include those
that are parties to the Convention, and must fulfil their international obligations
and implement the provisions of the Covenant in their respective domestic legal
orders.
7. Blasphemy in the Greek Orthodox legal tradition
Dimitris Sarafianos,
Member of the Board, Hellenic League for Human Rights, Greece

Chapter VII of the Greek Penal Code on Offences against religious peace
deals with the offences of malicious blasphemy, common blasphemy, religious
insult and disturbance of religious gatherings.
According to the definition of malicious blasphemy, whoever publicly and mali-
ciously offends God in any way whatsoever is punishable with imprisonment for
a term of up to two years. According to the definition of common blasphemy,
whoever publicly manifests a lack of respect for the divine is punishable with
imprisonment for a term of up to three months. According to the definition of
religious insult, whoever publicly and maliciously insults the Eastern Orthodox
Church in Christ, or another religion tolerated in Greece, in any way whatsoever
is punishable with imprisonment for a term of up to two years. In relation to the
disturbance of religious gatherings, whoever maliciously attempts to prevent or 105

intentionally disrupts a religious worship gathering or ceremony allowed by pol-


ity, as well as anyone who, inside a church or a place designated for a religious
gathering tolerated by polity, commits insulting and offending acts is punishable
with imprisonment for a term of up to two years; a different provision punishes
insult against the deceased.

Case law
The development of case law on these offences highlights their structurally-
ingrained problems. To begin with, according to firmly established case law
(Supreme Court 360/64, 666/76, 233/78, 1166/78, 820/81, 928/84,
1869/84, 119/88, 422/98, Admiralty Court of Piraeus sitting as a Board
22/97, Opinion of the Public Prosecutor to the Court of First Instance of Thessal-
oniki 6/97), blasphemy is any public manifestation whatsoever (oral, in writing,
by way of images, symbols and/or gestures) involving mockery, affront, offen-
sive or vulgar expressions against God as the Supreme Being of monotheistic
religions or against the divine, including anything that is considered sacred by
a recognised religion. A public manifestation is any manifestation that may be
perceived by an undetermined number of people irrespective of whether it took
place in a public area or was actually perceived by anyone. Religious insult is
any public manifestation of contempt by way of vituperative or vile utterances
or by the vile abuse of doctrines, symbols or customs in any form whatsoever.
Blasphemy, insult and hatred

The interpretation of the notion of malice, on the other hand, has evolved in case
law: at first, even the intention of derisory use of religious symbols was enough to
qualify the offence as malicious. Thus, in the Supreme Court decision 233/78,
the derisory use of the Credo led to the condemnation of the authors of the revue
69 ways to laugh because the target of the satire was obviously the recent junta
and the role of the Church during that period (mostly, the Churchs indifference
to the oppression and violation of human rights: God is depicted as totally
oblivious of 21 April, the day of the coup dtat, because He was preparing for
Easter). In contrast, according to the Supreme Court decisions 928/1984 and
1869/1984 (just six years later), the term malicious incorporates a vilifying
act aimed directly at offending a religion for the offenders gratification. This line
of argument was used to reverse the sentence against the playwright of The Saint
of Preveza, which satirised the then-recent scandal involving the Metropolitan of
Preveza, for lack of motivation in the element of malice.

This turning point in case law significantly restricted the scope of malicious blas-
phemy and malicious religious insult (see Decision 2058/93 of the Magistrates
Court of Thessaloniki sitting as a Board, Order 47/93 of the Public Prosecu-
tor of Thessaloniki, both cases on the motion picture Jesus of Montreal, and
Decision 4959/94 of the Magistrates Court of Athens sitting as a Board in
the case of Black Hole). But it did not affect the scope of blasphemy simpliciter,
106
which is still consistently punished by the courts even when it is obvious that the
offender does not express indignation against God or religion but against a spe-
cific person

(see Supreme Court 119/88, 1046/91, Appellate Court of Athens
5346 -5347/90).

This turnaround led the faithful, who felt scandalised by certain art works, to redir-
ect their efforts from the criminal to the civil courts to obtain injunctions prevent-
ing the exhibition of such works, arguing that by offending God and religion
the works also offended them personally. At first, the courts upheld such motions
(Court of First Instance of Athens 17115/88 in the renowned case of Scorseses
film The Last Temptation, based on the book by N. Kazantzakis, who was excom-
municated by the Church), arguing that religious insult (qualified as malicious
by reference to case law prior to 1978) encroaches upon the religious feelings
and the religious freedom of others, both of which are protected as moral-social
values, as social and legal interests worthy of protection to the benefit of civilisa-
tion and the polity. According to this decision, religion is not a purely personal
affair, a wholly inner relationship of the soul with God, irrelevant to the state, but
is the foundation of the state, a vector of spiritual civilisation affecting not only the
feelings and thoughts, but also the actions, of human beings. The same decision
also found that the projection of the motion picture inspired strong protests, dem-
onstrations and discontent, which threatened order and peace among civilians.
The decision undertook a flawed balancing exercise between artistic creation and
religious feeling, clearly taking a stance in favour of the latter, as an obvious limit
Conference on Art and Sacred Beliefs: from Collision to Co-existence

to freedom of art, also arguing that cinematographic representation is perceived


as another reality.

By contrast, in its decision 5208/00, in the case of the book Mv (M to the power
of n), the Court of First Instance of Athens found that this allegorical work of lit-
erature does not qualify as malicious insult against religion because its target
is something else (the condemnation of misogyny in general) and it does not
attack religion as such; therefore, it cannot be considered that the personality
of the complainants, as reflected in their religious feelings, is offended. Besides,
works of literature are protected by the Constitution as works of art and, since
freedom of art seeks to protect over-riding social considerations, it can accom-
modate offences against personality insofar as they do not infringe upon human
value. Now, in our opinion, it is questionable whether a work of art can infringe
upon human value at all. But there is no doubt that personality cannot possibly
be infringed on when the abuse or derision is not directed against a specific
person and such person is deemed to be offended indirectly and by reflex (see
Supreme Court 1298/2002).

And even in the event of a direct offence of personality, it must be investigated


whether freedom of art through satire or criticism prevails (for both the artist and
the public enjoying the work). But our intention is not to dwell on this point66 but
to reflect more systematically on the problems arising from the inclusion of these 107

offences in our legal system. Regrettably, this reflection has become very top-
ical lately because the Greek judiciary has reverted all too easily to its former
practice, bringing the offences of malicious blasphemy and religious insult to the
forefront again (a sign of our times).

On the occasion of the presentation of the painting Asperges me by Thierry de


Cordier in the Outlook exhibition, the Magistrates Court of Athens, in its deci-
sion 44540/06, found no malice in compliance with the aforementioned case
law of the Supreme Court. This case has left us at the pinnacle of judicial art
criticism in the committal, which characterised the work as despicable, offend-
ing public decorum and as an alleged work of art which is not part of human-
itys artistic creation and does not contribute to promoting human knowledge
and propriety. Gerhard Haderers cartoon on the life of Jesus, initially the object
of a confiscation order, was qualified as malicious religious insult by the Three-
Member Magistrates Court of Athens mainly due to the chemical constitution
of incense, which was proved not to contain any ingredient similar to hashish
(as opposed to a footnote to that effect by the cartoonist). The Athens Appellate
Court, in its decision 4532/05, spared the cartoon because of its humorous
nature, which excluded malice on part of the cartoonist.

66. It is thoroughly discussed in the book by Professor S. Tsakyrakis, Religion v. Art, Athens: Polis,
2006.
Blasphemy, insult and hatred

The reasoning behind these decisions

A first problem that can be identified is the motivation of related decisions:


although the notion of malice is adequately discussed, no consideration is given
to what can qualify as blasphemous. All instances of derision, scornful remarks
and manifestations of ill-will are taken as blasphemous per se. Even if we
were to assume that what is blasphemous is to be decided each time accord-
ing to the limits set by the religious community involved, one would still expect
discussion of the motivation to make reference to theological texts (the issue is
not only theoretical if one takes into account Matthew 12: 31-32: and whoso-
ever speaketh a word against the Son of man, it shall be forgiven him). And
yet, it does not. For, though the normative scope of the provision encompasses
all religions, all court decrees so far issued are for blasphemy against the dom-
inant religion (no-one from the dominant religion or the old-calendar monks has
been prosecuted for blasphemy, for instance, for comparing Muhammad or the
Pope to Satan) and what counts as blasphemy is taken as self-evident that is,
self-evident to the faithful of the majority, which usually includes the judge giving
the judgment.

A more critical stance is to identify the legal good protected by the above provi-
sions. It is acknowledged, and rightly so, by both case law and jurisprudence,
that these laws do not protect God, since God does not need protection.67
108
Therefore, the protected legal good is to be looked for in the religious feelings
of believers, in religious peace as a particular aspect of social peace, in public
order and good conduct, and in religion as such.68 As the recitals of the 1933
draft Penal Code (recital 203) typically point out, it is irrelevant whether the per-
sons who are aware of the affront are scandalised or experience any reaction
whatever, because the over-riding public interest here lies in fortifying religious
feeling among the people. However, the reason for punishing the act in question
is the undermining of religious peace.

If we proceed to examine the above legal goods we will draw these two
conclusions.

First, religious feeling does not consist of the actual feelings of any particu-
lar believer as a reflection of his/her personality. Blasphemy and insult are
treated as distinct offences: blasphemy is prosecuted ex officio (there is a direct
public interest in prosecuting this offence, as the recitals of the 1933 draft
Penal Code put it), whereas insult is prosecuted only on complaint. As a conse-
quence, indictment for the one cannot be converted into indictment for the other
(Supreme Court 1112/86) and it is not possible to join the proceedings as a
civil party (Supreme Court 1298/2002, Appellate Court of Piraeus 92/2001,

67. I. Gafos, Offences against religious peace in our Penal Code, Penal Chronicles (1958),
p. 513; G. Krippas, The crime of malicious blasphemy, Penal Chronicles (1975), p. 459; M. Alba-
nou, The crime of malicious blasphemy according to art, 198 PC, Penal Justice (2001), p. 878.
68. Gafos, Offences, p. 515; th. Kontaxis, Penal Code, Athens 1991, 1251.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

Three-Member Magistrates Court of Athens 18518/97). This view is also cor-


rect for the particular reason that for an act to qualify as the offence in question
it is not a requirement that an actual person be offended. The public utterance
of the blasphemous words or commission of the blasphemous acts in such a way
as could be perceived by persons lying outside the immediate surroundings of
the defendant suffices. In this way, (religious) feeling is reified. It is immanent in
the public domain and can be infringed upon without the intervention of actual
people. It is as if there was a legal fiction to the effect that the state itself had
religious feelings. This is a blatantly ideological construct and cannot offer suf-
ficient grounds for criminal punishment, as is the case for all non-personalised
feelings (citizens sense of security, for example).

Second, the protection of religious peace seems to have a more substantive


basis to it: it can be readily understood that blasphemy creates a risk of arousing
passions that may lead the faithful to committing acts that disrupt public order
and good conduct.69 The same point can, of course, be made about arousing
political or football passions. The difference is that the notion of religious peace
does not require that violent acts be committed in advance, as it does in the
case of Article 192 of the Penal Code (causing or inciting citizens to acts of
violence) according to its correct interpretation. It is not even necessary that the
offender intended to arouse citizens or was aware that his/her acts were capa-
ble of arousing citizens. Here again, religious peace is construed as an inde-
pendent, intangible good one that may be harmed by the mere utterance of 109

the blasphemous words or the commission of the blasphemous act as a kind of


religious appeasement, a religious calm that is not to be disrupted.

Obviously, this ideological construct is no more able to offer legitimate grounds


for specific criminal offences. But something else needs to be underlined: all
these crimes of arousing citizens those that do not fall within the scope of
instigating crimes against specific material goods (life, physical integrity, prop-
erty), namely those that do not aim to persuade others to commit acts that they
would not have committed otherwise, but instead incite acts of violence indirectly
and by reflex (in the sense that a violent act is the reflex response to such incite-
ment) comprise an oxymoron: their punishment leads to the satisfaction of
the perpetrators of violent acts. So this is how the law seems to understand the
request of a religious community or, indeed, a request by members of a political
party or a football team: do not provoke us or we will attack you or, even worse,
we will resort to generalised violence.

Thus, in such cases the protected legal good behind public order (which can be
disrupted by acts of violence, and only by such) seems to be the intolerance of
others, and in its more vicious form. How such a view might be accepted in the
context of a liberal constitution desirous to promote pluralism through freedom
of expression, as well as freedom of artistic and scientific endeavour, is utterly

69. Gafos, Offences, Penal Chronicles (1958), p. 516.


Blasphemy, insult and hatred

baffling. Worse still, if these offences were meant to protect religious peace,
the law seems to consider that religious communities are much more willing to
resort to acts offending public order than are other communities (political, foot-
ball) since their peace can be disrupted by blasphemy, which seems to be con-
sidered, by definition, capable of inciting violence.

Clearly, this view is not particularly flattering to religious communities and one
might expect them to demand the abolition of these offences. It implies a pater-
nalistic logic that sees the state as a protector taking the faithful (independ-
ently of creed) under its wing and punishing whoever, by word or symbolic
act, instils hatred and discord in their hearts or, worse still, activates triggers
of immanent hatred. That very same logic lay behind the Supreme Court deci-
sion 208/1991, which upheld as complete and legitimate the motivation of the
Appellate Court in convicting candidate MPs, who had circulated a memo char-
acterising the Muslim minority of western Thrace as Turkish, for disturbance of
the social peace on the grounds that in this way they consciously sought to instil
and sow the seeds of discord, hatred and animosity in the hearts of Greek Mus-
lims against Greek Christians, which soon led to acts of violence (by Christians,
for what its worth ).

The only provision that could find justification in the protection of religious peace,
construed as protection of the right to the unhindered and active celebration of
110
religious convictions, is the offence of disturbing religious gatherings.

Blasphemy and art


How then is the relationship between blasphemy and art to be treated in the
context of criminal law? Jurisprudence is met with strong criticism for failing to
consider the perpetration of these offences in the light of the constitutionally-
embedded freedom of art. It is argued that freedom of art is safeguarded without
reservation in the constitution and, in case of conflict between the two injured
rights, freedom of art should prevail.70 Indeed, this argument is not without foun-
dation.71 However, in order to proceed to a balancing exercise, there must be a
conflict of rights that emanate from constitutionally-protected legal goods.

Freedom of art and religious freedom can be weighed against each other in the
context of criminal law only in cases where the exercise of artistic activity dis-
rupts a religious gathering. It is in this context that an eventually extreme aggres-
sive behaviour of artistic activity might be found punishable and the interpreter
of the law would then be obliged to balance the two rights. Such a balancing
exercise has no place on any other occasion because it would involve a conflict
between a constitutionally-protected right and legal good (artistic activity) and

70. Tsakyrakis, Religion v. Art, p. 187f. contra P. Dagtoglou, Civic Rights, Athens 1991, p. 924, and
Albanou, The crime of malicious blasphemy, p. 880.
71. Considering, of course, that the unity of Constitution calls for a practical harmonisation of all
rights: see G. Theodosis, Freedom of Art, Athens 2000, p. 142f., Tsakyrakis, Religion v. Art, p. 199f.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

a non-protected and constitutionally disapproved practice: the intolerant request


to ban the exercise of a constitutionally-protected right.
But let us consider the event of religion itself as the interest that is protected by
the offences of blasphemy and religious insult. As decision 17115/88 of the
Court of First Instance of Athens typically expounds, religion is the foundation of
the state. If this is true, then indeed these offences acquire a peculiar materiality:
no-one questions the power of the state to protect itself from internal or external
threats against the integrity of the country, its political organisation or its ability
to efficiently enforce the states will; if, by protecting religion, the state ultimately
protects itself then the materiality of the protected good becomes crystal clear.
This, however, would entail that irreligious people (and, more so, atheists) can-
not be citizens of such a state. Moreover, religion per se not in the sense of the
creed of an actual religious community cannot be conceived as an interest per-
taining to one person or group of persons but as pertaining to all people. These
ecumenical goods, however, are abstract ideological constructs and, when
placed under the protection of criminal law, lead to total aberration.72
Paradoxically, a liberal view compatible with the Constitution on the materiality
of the protected legal good leads to only one unconstitutional conclusion: the
good protected by blasphemy can only be a particular religion which, if taken
as the foundation of the state, places non-followers outside the notion and the
capacity of citizenship. Thus, theocracy is the only foundation for penalising 111
blasphemy. In a theocratic regime, paternalism is a logical corollary; the state
protects its own foundations: the dominant religious community it is founded
upon and identified with. Including any religions it chooses to tolerate .
It is not even certain that such a regime would be desirable for the dominant reli-
gious communities. Too often in Greece, the interweaving of state and Church
has proved primarily injurious to the Church because it facilitates all sorts of
state intervention in the administration and organisation of the Church. There-
fore, there is no reason to maintain it, as there is no reason to maintain the
offences of blasphemy (malicious or not) and religious insult in our penal code.73
The punishment of blasphemers is not the responsibility of the state. Let them be
punished in the appropriate quarters

72. I. Manoledakis, The Legal Good, Thessaloniki 1988, p. 200.


73. Blasphemy is a pseudo-crime that penalizes beliefs: G. Kalfelis, Conversion of indictment from
malicious blasphemy to insult, Armenopoulos 1987, 812; I. Manoledakis, Penal Law, Thessaloniki
1985, p. 214; D. Spatharis, Article 198 of the Penal Code, Armenopoulos, 1988, pp. 102-3.
8. Blasphemy and justice in a Greek Orthodox context
Michael Tsapogas
PhD in Law at the Law School of the University of Munich

The emphasis of interest in Greek case law on religion and freedom of speech
might seem unjustified if findings on the situation of the Greek legal system more
or less coincided with the other comparable findings. What needs to be investi-
gated, then, is whether the Greek case is a case apart provided, of course,
this can be argued on verifiable grounds.

In the constitutional doctrine of many European countries, the criminal offence


of blasphemy resurfaces today as an atavistic memory from outdated obscure
times74 that regains topicality because of the rise of European Islam and that
questions the assumptions of the secular state. In contrast, the criminal treatment
of blasphemy in Greece in quantitative-statistical terms, but also in regard to
the investigations of jurisprudence has not waited for the emancipation, or the
sensitivities, of any minority; it has always been topical, and the majority reli- 113

gion has always been the one most sensitive to it.

If, temporarily and conventionally, we take the foundation of the Greek State as
the starting point of historical research, we find the 1834 Penal Law bearing the
clear and significant influence75 of the Bavarian Code. This is a privilege: the
1813 Bavarian Code was heralded as the first European penal code that no
longer entertained offences against God as such, in the spirit of the Enlighten-
ment. The transition from criminal law protecting the divine to its protection of
religious peace as a form of social peace is concisely explained by its drafter,
Ludwig Feuerbach:76

God is not liable to offence; and even if He were offended, He would not under any
circumstances wish the punishment of His offenders.

And yet the legislator of the young Greek State chose to diverge from his model
example in this particular chapter and afforded increased protection to all

74. Josef Isensee, Preface, in J. Isensee (ed.), Religionsbeschimpfung, Berlin 2007, p. 5.


75. Theodoros Papatheodorou, The 1834 Penal Law and Georg Ludwig von Maurer, in
A. Papageorgiou-Venetas (ed.), Othonian Greece and the Making of the Greek State, Athens 2002,
p. 156.
76. Ludwig Feuerbach, Lehrbuch des gemeinen in Deutschland gltigen Peinlichen Rechts, 14th edition
(1847), p. 488 et seq., quoted by: Michael Pawlik, Der strafrechtliche Schutz des Heiligen in J. Isen-
see (ed.), Religionsbeschimpfung, Berlin 2007, fn.10.
Blasphemy, insult and hatred

religions tolerated by government for the good of the Nation.77 It was pre-
cisely in this context that Article 196 of the Penal Law was born, the first criminal
provision of the Greek jurisdiction punishing whoever in public, in writing or
by way of symbolic representations attacks by scornful derisions or offending
verbalisations the doctrines, provisions and customs of Christian Orthodoxy or
another religion. Naturally, national criminal doctrine was swift in stressing78
that the object and purpose of such protection

is not religion in the literary sense of the word but the free and unhindered celebration
of creed the harmonious co-existence of religions and the prevention of eventual
mishaps occasioned by religious followers through insults or other unbecoming ways.

Over a hundred years later, the liberal observer might be similarly reassured
by the recitals of the Greek Penal Code in force, since they refer only to social
peace that might be disrupted by derision and disparagement of the con-
victions of others.79 In construing these provisions, Greek criminal doctrine
unanimously insists that the interest protected by the prohibition of blasphemy
and religious insult is social peace. As appositely pointed out,80 however, this
view would only be credible if blasphemy had to be heard by at least one
believer to be indictable, whereas Article 198 of the Greek Penal Code is sat-
114 isfied with publicity as a requirement for indictment, even before a religiously
indifferent audience. The provision as it stands seems to protect respect for the
divine as a legal interest independent of the intermediation of an offended per-
son as the subject of a civil right. The legislator is not content with ensuring a
non-scandalised life for believing civilians and peace among them, but reveals
himself as a believer.81

If it seeks to protect religion and not social peace, oblivious even to the actual
impact of the specific verbal abuse, such a provision ought not to be associated
with the system of criminal treatment of racial discourse. Therefore, any effort
to rescue the penalisation of blasphemy and religious insult by integrating them
into modern constructs of indictable hate-mongering82 would be historically and
legally ill-founded. Besides, it would not make sense for religions par excel-
lence power structures characterised by innate dogmatism and intolerance for

77. Georg Ludwig von Maurer, Das griechische Volk, Heidelberg 1835, [Greek edition:] transl.
O. Rombaki as The Greek people, Athens 1976, p. 643.
78. Konstantinos Kostis, Interpretation of the Greek Penal Act in Force, Vol. 2, Athens 1877, p. 181.
79. Georgios Poulis, Religious Criminal Law, Athens 1996, p. 24, and the literature referred to by
the author.
80. Dimitris Dimoulis, Blasphemy: a feudal remnant in religious state in P. Dartevelle, Ph. Denis and
J. Robyn (eds), Blasphmes et liberts, Paris 1993, in the Greek edition: D. Dimoulis (ed.), The Right
to Blasphemy, Athens 2000, pp. 24-8.
81. Dimitris Dimoulis, Arguments in favour of the abolition of the offences against religious peace,
available at: www.hlhr.gr/papers/dimoulis0.doc [in Greek].
82. Vasiliki Christou, Die Hassrede in der verfassungsrechtlichen Diskussion, Baden-Baden 2007.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

the misled83 to seek protection in laws designed for vulnerable minorities, like
a wolf seeking protection in the laws protecting sheep.
Court practice does not appear to have contributed in any particular way to
modernising the interpretation of this obsolete formulation of the Greek Penal
Code. The Appellate Court of Thessaloniki,84 in the case of the play The Saint of
Preveza by Dimitris Kollatos, ruled thus:
the theatre setting arranged so as to convey to the audience the impression of a
holy place, a church in particular, in that sacred symbols and objects were placed
in it; and in this setting male actors were dressed in canonical sacerdotal vestments
and cavorted with female actresses in obscene acts accompanied by foul dialogue.
The defendants maliciously insulted the Eastern Orthodox Church in Christ in that
their intention was not to castigate the conduct of specific priests but to attack the
above Religion as may be inferred from the fact that all the above acts took place
in a setting arranged so as to look like a church.

With arguments drawn from the scenic arrangements, the court concludes that
the purpose of the play could not have been other than insult.
The Athens Court of First Instance85 ruling in the affair of the film The Last Tempta-
tion by Martin Scorsese further clarified its interpretative choices:
Protection of religious feelings is imperative because they are moral-social values,
social and legal interests worthy of protection to the benefit of civilization and pol-
ity. Religion is not a purely personal affair, a wholly inner relationship of the soul 115
with God, irrelevant to the state, but the foundation of the state, a vector of spir-
itual civilization affecting not only the feelings and thoughts but also the actions of
human beings.

So feelings are protected objectively, not necessarily in association with actual


persons. In the same ruling, the discourse on cinematographic method is equally
edifying:
Interspersed with all this and reinforced with the help and force of cinema art as
to motion, expression and, generally, photographic representation and mise en
scne, to the extent that the public accept the motion picture at issue as another real-
ity, Jesus Christ is depicted as weak, a liar, a hypocrite, a magician, inconsistent,
sometimes talking about love, sometimes talking about fear or about axe and fire,
doubting his mission, indulging in erotic fantasies, unavowed desires and longings,
[He] is parodied, vilified and ridiculed in public with intention to express contempt,
hence maliciously blasphemed. And all that, even if on this particular occasion the
director was driven by artistic creation, contravenes morality which springs from

83. Dimitris Dimoulis, Religious freedom as a rule of differentiation and notion of exclusion in
D. Christopoulos (ed.), Legal Issues of Religious Otherness in Greece, Athens 1999, pp. 149-155;
Laurent Jzquel, Libert de croire libert de penser, Paris 1999, in the Greek edition (translated by
A. Keramida): Freedom of Belief Freedom of Thought, Athens 2006, pp. 10-44.
84. As quoted in the Supreme Court Decision 928/1984: Poinika Chronica [Criminal Annals],
Vol. 35/1985, pp. 134-5.
85. Ruling 17115/1988: Epharmoges Dimosiou Dikaiou [Public Law Applications], Vol. 2/1989,
pp. 216-35, with commentary by Georgios Kaminis; also Gerasimos Thedosis, Freedom of Art,
Athens 2000, p. 125.
Blasphemy, insult and hatred

the fundamental political, social and moral principles and precepts that prevail in
Greek polity and represent the popular sense of decency.

So here, not only is the mediation of cinematographic art not taken into consid-
eration in favour of the defendant, as a presumption of the exclusion of malice
or as a pursuit which enjoys constitutional protection in itself but, on the contrary,
it counts as an element against the defendant, a misleading, almost satanic,
medium by definition. Not even deigning to go through the other legal pre-
requisites for indictment, the judge is content with establishing the falseness,
the insulting function and verisimilitude of the proffered interjections, as well
as their potential to be believable, as if the judge were called upon to defend a
living person who was a victim of insult or libel.

The choice of the above quotations might be accused of arbitrariness and pos-
sessing an intention to mislead. True, the verbal aberrations encountered in
these, as well as in other court decrees, are the exception in the system of Greek
case law as epitomised in the level of last-resort rulings. By entertaining a more
systematic and attentive contact with criminal doctrine, the Supreme Court has
never deviated into directly questioning the view that the object of protection
here is religious peace and not God Himself. However, to restrict ourselves only
to the choices of the summit of the judicature would only make sense in the con-
text of a purely legalistic approach where positions and trends are defined and
116
codified only on the basis of last-resort judgments. If, by contrast, we investigate
the prevalent ideology of the judiciary, the spontaneous and legally uninformed
judgments of trial judges, who are closer in terms of time and merits to both the
dispute and the insatiable public opinion, may prove equally, if not more, impor-
tant. In first and second instance trials adherence to the pre-modern definition of
blasphemy remains the rule.

Besides, even if we judge by their impact on the freedom of litigants, trial court
decisions are by no means less important. Thus, for instance, the mere commit-
tal of a heretic work of art to a criminal trial, even if it does not end in a con-
viction, is a public act that upsets the lives of people and indirectly leads them
to self-censure, if not self-exile, as in the case of Andreas Laskaratos, who was
tried in 1869 by the Appellate Court of Corfu86 for The Mysteries of Cephalonia.
Zealotical and moralistic, this pervasive ideology redesigns the grammatical
dimensions of the applicable provision, which ceases to be a formal rule of
abstract endangerment offences87 and becomes itself an actual endangerment
of every free intellectual activity.

A civil court decision, issued in relation to the procedure for interim measures
or a prosecutors confiscation order, can have even more direct implications

86. Pantelis Ravdas, With a book in the face of God in M. Loukidis, V. Papadopoulos and
P. Ravdas, Trials of the Word, Athens 2002, pp. 216-17.
87. Alexandros Kostaras, Freedom of art and criminal law in Democracy Freedom Security:
Festschrift for Ioannis Manoledakis, Vol. 1, Thessaloniki 2005, pp. 427-9.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

for actual freedom of speech, as is evident in the case of Gerhard Haderers


cartoons called The Life of Jesus, which according to the prosecutors office88
constitute a gross and vulgar manifestation of contempt and affront against
the person of Jesus Christ with the ultimate goal to earn money. But, in the
context of a sober valuation of legal texts, the indictment preceding an acquit-
tal may prove just as interesting, like the committal to trial of the curator of the
Outlook exhibition:89
an obscene and despicable painting the product of a perverted artistic mind
although aware of the repulsive content of the despicable work, he presented it in
a public event directly expressing a malicious will to scorn and ridicule the Eastern
Orthodox Church.

If this and other disquisitions by judges or prosecutors point to an endemic confu-


sion between the purpose of the law and the protected legal interest in relation
to blasphemy and religious insult, it would be unfair to blame it on the inade-
quate legal training of responsible officials and it would be sloppy to explain it
in terms of less-than-perfect drafting of the relevant law.
To explore the deeper causes, we must take an even greater leap into the past
than the one that took us back to 1834. This anachronism is inspired by some
of the court decisions in question, which attempt to identify the historic basis of
the applicable provisions, referring explicitly to the Byzantine Empire: whereas
under Article 200 of the Penal Code, first introduced by Byzantine Law .90
117
If this reference back makes sense in matters of civil law, which were governed
by the Roman Pandects until 1946, such a reference is paradoxical, to say the
least, in matters of Greek criminal law, which were regulated by a modern code
right from the start.
And yet the Greek judge is not mistaken in his sense of continuity. However mod-
ern on the surface, the penal treatment of blasphemy and religious insult dates
back to a clearly discernible legal lore that is nothing other than the articulation
of State and Church. A brief kaleidoscopic view into the history of this relation-
ship may prove edifying, even if it does not go back as far as the burning of
Jewish books by the emperor Theodosius. As in the medieval west, so too in
this part of the world, beginning with a novel of the emperor Justinian in 538,91
blasphemy was for centuries a crime certified by the Church and punished by
the state on ground of the social need to placate divine wrath in order to ward
off imminent famines and earthquakes.92 In those times, the scope of the offence
was far-reaching and included even the violation of the Biblical commandment

88. Quoted in decision 882/2003 of the Magistrates Court sitting as a Board; see Stavros Tsakyrakis,
Religion v. Art, Athens 2005, p. 71.
89. Arraignment by Prosecutor, Magistrates Court of Athens, quoted by Tsakyrakis, Religion v. Art,
pp. 66-8.
90. Decision 95/1971 of the Magistrates Court of Herakleion sitting as a Board: Poinika Chronica
[Criminal Annals], Vol. 21/1971, p. 498.
91. Pawlik, Der strafrechtliche Schutz des Heiligen, p. 31.
92. Arnold Angenedt, Gottesfrevel in J. Isensee (ed.), Religionsbeschimpfung, Berlin 2007, p. 22.
Blasphemy, insult and hatred

Thou shalt not take the name of the Lord Thy God in vain.93 But, whereas else-
where the Enlightenment gradually permeated the organisation of societies and
secularised criminal repression, the Orthodox corner of Europe succeeded in
escaping infiltration by Satan. Pre-modern theoretical schemes, like the scheme
to ward off famines and earthquakes, have already disappeared from German
treatises of criminal law by the late 18th century.94 Here, by contrast, a court in
the late 20th century finds that religion is the foundation of the state.
A token of the perpetual interweaving of secular and ecclesiastical jurisdiction is
the inclusion of the penalty of excommunication into the public arsenal of repres-
sion. This post-Byzantine building block survived not only through the long years
of the Ottoman Empire, which might be considered reasonable, but even into
the modern Greek State in an irrational fusion of responsibilities or, as it has
been brilliantly called,95 in an exchange of services, whereby the Church submits
excommunication to public approval and avails it for extra-religious uses, whilst
the state integrates purely religious offences, like blasphemy or proselytism, into
the Penal Code.
Thus, in 1837, in response to a government appeal for assistance in the preven-
tion and punishment of animal theft, the Church excommunicated those arrested.
Eight years later, responding to a request by the Mayor of Piraeus, the local
Bishop of Attica excommunicated those who felled trees in the city garden.96 No
118 less than one hundred and fifty years later, the Holy Synod officially asks the
government to ban The Last Temptation by Nikos Kazantzakis and Mv (M to the
power of n) by Mimis Androulakis.97
So, if one may speak of Greek peculiarity in the matter at hand, this cannot
be explained except by going back to the relationships between the state and
the Church, the origins of these relationships and the continuing recognition of
a dominant religion that is, a state religion and to the atmosphere of a
natural alliance between justice and the Church in view of their supposed
common moral pursuits. Besides, the taxonomic criterion of state-Church rela-
tionships lends itself as the most apposite standard for any typology of criminal
treatment of blasphemy throughout the world over, with typical examples found
in a series of Islamic countries, at the one end, and of the United States, at the
other end.98

93. Bernard Lauret, Thou shalt not take the name of Lord Thy God in vain in P. Dartevelle, Ph. Denis
and J. Robyn (eds), Blasphmes et liberts, Paris 1993; [Greek edition:] D. Dimoulis (ed.), The Right
to Blasphemy, Athens 2000, p. 81.
94. Pawlik, Der strafrechtliche Schutz des Heiligen, fn. 13.
95. Ravdas, With a book in the face of God, p. 207.
96. Panagiotis Michaelaris, Excommunication: the Adaptation of a Sanction to the Necessities of the
Ottoman Empire, Athens 1997, pp. 441-2.
97. Ravdas, With a book in the face of God, pp. 242, 259; Nikos Alivizatos, Uncertain Modern-
ization and Murky Constitutional Revision, Athens 2001, p. 293.
98. Tsakyrakis, Religion v. Art, pp. 154-68; Stefan Mckl, Meinungsuerungsfreiheit versus
Religionsfreiheit: Anforderungen aus menschenrechtlicher Sicht in E. Klein (ed.), Meinungsue-
rungsfreiheit versus Religions- und Glaubensfreiheit, Berlin 2007, p. 86.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

Echoing these comments, the Hellenic League of Human Rights graphically


describes the characteristics of the Greek case in a recent announcement:99
when entire regiments of the judiciary secretly march through the offices of prelates,
the suspicions of those who entrusted the protection of their religious freedom in
Greek justice become reasonable this consorting of judicial officials with clergy-
men from the dominant religion is still seen as the corollary of an allegedly natural
alliance between these two domains in their assumed attachment to the common
pursuits of justice and morality the separation of the church from the state is an
indispensable prerequisite for gradually instilling religious neutrality into judicial
and other public officials.

Nowadays, the penal protection of God in Himself is imaginable only in those


countries that place one religion at the foundation of their existence.100 By con-
trast, in countries not identified with a specific confession, this protection is
unthinkable. Indeed, to a good Christian it would perhaps be more satisfactory
to abolish criminal protection rather than maintain it: in the parable of the wheat
field,101 when the servants ask their master if they must uproot the weeds he
answers: Nay, lest while ye gather up the tares, ye root up also the wheat with
them. Let them grow together until the harvest.

119

99. www.hlhr.gr/papers/kratos-parakratos-ekklisia05.04.05.doc.
100. Josef Isensee, Blasphemie im Koordinatensystem des skularen Staates in J. Isensee (ed.),
Religionsbeschimpfung, Berlin 2007, p. 116; Georg Kpper, Zu Notwendigkeit und Umfang
strafrechtlichen Schutzes gegen die Beschimpfung von religisen Bekenntnissen in E. Klein (ed.),
Meinungsuerungsfreiheit versus Religions- und Glaubensfreiheit, Berlin 2007, p. 23.
101. Gospel of St Matthew, 13: 29-30.
9. Conflicts between fundamental rights:
contrasting views on Articles 9 and 10
of the European Convention on Human Rights
Franoise Tulkens
Judge at the European Court of Human Rights and President of the Second Section

How are freedom of expression and freedom of conscience to be reconciled?


Put in these terms, this apparently simple question is formidable. If I transpose it
into the language of the European Convention on Human Rights, we have to find
a way of reconciling two rights which the Convention protects equally the right
to freedom of thought, conscience and religion secured by Article 9, and the
right to freedom of expression, in particular artistic expression, secured by Arti-
cle 10.102 The publication in a Danish newspaper of caricatures of the prophet
Muhammad in September 2005 might have given the Court an opportunity to
rule on the matter, but the Ben El Mahi and others v. Denmark application was
declared inadmissible on 11 December 2006 because there was no jurisdic-
tional link (in the sense of Article 1 of the Convention) between Denmark and the
applicants a Moroccan national and two Moroccan associations living and
121
working in Morocco; moreover, they were not within Danish jurisdiction either,
by reason of a possible extra-territorial act.
Even though the problem of conflicts of law is a classic problem that has long
preoccupied jurists and philosophers,103 such conflicts are becoming increas-
ingly frequent in many fields, as both the rights protected by the Convention
and states obligations have evolved. So how are we to judge, how should
we assess, these situations of conflict between fundamental rights? In section
I (below), I look at the various approaches which the Court takes or can take,
indicating their scope and their limitations. It is more and more apparent to me
that such conflicts require a new mode of resolution, the basis of which yet has
to be constructed, and accordingly I go on in section II to suggest a number of
possibilities.

102. The same conflict may of course arise between Article 9 and Article 11 European Court of
Human Rights (The Court), Grand Chamber (GC), judgment in Refah Partisi (Prosperity Party) and
others v. Turkey of 13 February 2003; The Court, GC, judgment in Hassan and Tchaouch v. Bulgaria
of 26 October 2000 or Article 2 of the First Protocol to the Convention: The Court, judgment in
Kjeldsen, Busk Madsen and Pedersen v. Denmark of 7 December 1976, paragraph 52; The Court,
judgment in Campbell and Cosans v. United Kingdom of 25 February 1982, paragraph 37; The
Court, GC, judgment in Folger and others v. Norway of 29 June 2007, paragraph 84.
103. See Saint James, La conciliation des droits de lhomme et des liberts publiques en droit franais,
Paris: PUF, 1995; R. Alexy, Balancing constitutional review and representation, International Jour-
nal of Constitutional Law (October 2005), pp. 572-81; S. Greer, Balancing and the European Court
of Human Rights: a contribution to the Habermas-Alexy debate, Cambridge Law Journal, Vol. 63,
No. 2 (July 2004), pp. 412-24, in particular p. 417.
Blasphemy, insult and hatred

However, I confine myself to those cases in which the Court has been faced with
situations of genuine conflict between Articles 9 and 10 of the Convention, that
is to say situations in which the state cannot uphold one of the rights without
infringing the other.104 For example, in the Leyla S,ahin v. Turkey judgment of
10 November 2005, the situation is not strictly speaking one of conflict between
two rights equally secured by the Convention, but rather one of conflict between
a right secured by the Convention in Article 9 and an interest recognised in
domestic law as having importance but not having the status of a fundamental
right within the meaning of the Convention, namely the principle of secularity
and neutrality of the state argued by the government.105

I. Traditional methods of resolving conflicts of law


Here I deal with three methods, some of which of course overlap.
A. The test of necessity
One of the most common ways of resolving conflicts of law is suggested by the
actual structure of certain provisions of the Convention the very ones which
concern us here, Articles 9 and 10 which, on the one hand, recognise a right
or a freedom and, on the other hand, add that limitations are allowed on cer-
tain conditions. So we are in the field of limitations on the rights secured, which
confronts us with the general problem that, in a democratic society, hardly any
rights are totally absolute. Moreover, these limitations or restrictions illustrate the
122
classic dialectic, where fundamental rights are concerned, between safeguard-
ing the individual right and defending the general interest.
For example, as regards Article 9, freedom to manifest ones religion or ones
religious beliefs is not an absolute right. It may be set against the rights and
freedoms of others, which implies, inter alia, respect for everyones beliefs in
relation to proselytising106 and protection of minors,107 or the protection of public
order,108 security109 or public health110 (Article 9.2).
In regard to Article 10, the Court observed in the Murphy v. Ireland judgment
of 10 July 2003, on prohibiting the television broadcast of a religious advertise-
ment, that freedom of expression constitutes one of the essential foundations
of a democratic society, characterised by pluralism, tolerance and broad-

104. On this problem area as a whole, see O. De Schutter and F. Tulkens, Rights in conflict: the
European Court of Human Rights as a pragmatic institution, in E. Brems (ed.), Conflicts between
Fundamental Rights, Antwerp, Intersentia, 2008 (unpublished).
105. The Court, GC, Leyla S,ahin v. Turkey, judgment of 10 November 2005, paragraph 107.
106. The Court, Kokkinakis v. Greece, judgment of 25 May 1993, paragraph 33; The Court, Larissis
and others v. Greece, judgment of 24 February 1998.
107. The Court, Dahlab v. Switzerland, decision of 15 February 2001; The Court, Ciftci v. Turkey,
decision of 17 June 2004.
108. The Court, Vergos v. Greece, judgment of 24 June 2004, paragraph 33 (rational urban
planning).
109. The Court, Phull v. France, judgment of 11 January 2005, paragraph 21 (wearing of the turban
and security at airports).
110. European Commission of Human Rights, X. v. United Kingdom, application 7992/77, decision
of 12 July 1978 (obligation on motor-cyclists to wear a helmet).
Conference on Art and Sacred Beliefs: from Collision to Co-existence

mindedness. So freedom of expression is the cornerstone of democracy and


in this sense is a public freedom. More precisely still, freedom of expression is
not only a safeguard against interference by the state (a subjective right), but
also an objective fundamental principle of life in a democracy; consequently, it
is not an end in itself but a means of establishing a democratic society. It was
this social function of freedom of expression that led the Court to give a broad
interpretation of the scope of Article 10. However, as the second paragraph
of Article 10 expressly recognises, the exercise of this freedom carries with it
duties and responsibilities. Among these, in the context of religious beliefs,
there is the general requirement to ensure the peaceful enjoyment of the right
guaranteed under Article 9 to the holders of such beliefs.111
The method employed by the Court when called upon to judge what are known
as relatively protected rights is well known. It proceeds in three stages: interfer-
ence may be justified if it is prescribed by law, pursues a legitimate aim and is
necessary in a democratic society, which implies a pressing social need. The
combination of these three conditions opens the way to the irresistible rise of the
principle/criterion of proportionality.112
Three significant recent examples

In the case of Giniewski v. France, the applicant, a journalist, sociologist and his-
torian, had written a newspaper article on John-Paul IIs encyclical The splendour
of truth. An association complained that the article was defamatory of the Chris- 123

tian community, and the domestic courts found that interference with freedom of
expression was justified by the need for protection of the reputation or rights of
others (Article 10.2). In its judgment of 31 January 2006, the Court observed that,
although the applicants article did indeed criticise a papal encyclical and thus the
position of the Pope, such an analysis could not be extended to the whole of Chris-
tianity, which comprises various strands. It considered above all that the applicant
was seeking to develop an argument about the scope of a specific doctrine and its
possible links with the origins of the Holocaust. In so doing he had made a contri-
bution, which by definition was open to discussion, to a wide-ranging and ongo-
ing debate, without sparking off any controversy that was gratuitous or detached
from the reality of contemporary thought. By considering the detrimental effects of a
particular doctrine, the article in question contributed to a discussion of the various
possible reasons behind the extermination of the Jews in Europe, a question of indis-
putable public interest in a democratic society. The Court noted that the search for
historical truth is an integral part of freedom of expression and that the article writ-
ten by the applicant was in no way gratuitously offensive or insulting and did not
incite disrespect or hatred.113 Consequently, the applicants conviction on the charge
of public defamation of the Christian community did not meet a pressing social need.

111. The Court, Murphy v. Ireland, judgment of 10 July 2003, paragraph 65.
112. P. Martens, Lirrsistible ascension du principe de proportionnalit, in Prsence du droit public
et des droits de lhomme. Mlanges offerts Jacques Velu, Brussels, Bruylant, 1992, p. 51 et seq.
113. The Court, Giniewski v. France, judgment of 31 January 2006, paragraphs 49 to 53.
Blasphemy, insult and hatred

In the Aydin Tatlav v. Turkey judgment of 2 May 2006, the Court found that
the conviction of the author of a book arguing that the effect of religion was to
legitimise social injustices by representing them as the will of God was a vio-
lation of Article 10. In the Courts view, this is the critical standpoint of a non-
believer in relation to religion in the socio-political sphere. However, it [did]
not observe, in the disputed utterances, any insulting tone directly aimed at
believers in person, nor any insulting attack on sacred symbols, in particular of
Muslims, even though the latter, on reading the book, may indeed feel offended
by these somewhat caustic comments on their religion.114
In Klein v. Slovakia, the applicant had published an article criticising Archbishop
Jn Sokol for having proposed in a television broadcast that the film Larry Flint
should be banned. The article contained strong images referring to an inces-
tuous act committed between a dignitary of the Church and his mother in the
film which Monsignor Sokol was seeking to ban. Two associations complained
that the article in question had offended the religious feelings of their members.
The applicant was found guilty of defamation of nation, race and belief. In its
judgment of 31 October 2006, the court found that the applicant had defamed
the highest representative of the Roman Catholic Church in Slovakia and thereby
offended the members of that Church. In particular, the applicants statement in
which he wondered why decent members of the Church did not leave it had
blatantly discredited and disparaged a group of citizens for their Catholic faith.
124
This finding was upheld by the appeal court, which considered that the appli-
cant in his article had infringed the rights, guaranteed by the Constitution, of a
group of persons of the Christian faith. In its judgment the European Court con-
sidered that the applicant, in his article, did not discredit and disparage a sec-
tor of the population on account of their Catholic faith. The applicants strongly
worded pejorative opinion related exclusively to the person of Mgr Sokol, a
senior representative of the Catholic Church in Slovakia. That being so, the
Court considered that the applicant had neither infringed the right of believers
to express and practise their religion nor disparaged their faith. Consequently,
despite the tone of the article, the Court found that it could not be concluded that
the applicant interfered with other persons right to freedom of religion in a man-
ner justifying the sanction imposed on him. The interference with his right to
freedom of expression therefore was not necessary in a democratic society.115
There are certain limitations on the test of necessity. As E. Brems observes,
although the two rights are equally fundamental and carry the same weight a
priori, they are not put before the courts in equal manner.116 The right invoked
by the applicant receives greater attention, because the question which the court
has to answer is whether or not it has been violated. So the test of necessity

114. The Court, Aydin Tatlav v. Turkey, judgment of 2 May 2006, paragraph 28.
115. The Court, Klein v. Slovakia, judgment of 31 October 2006, paragraph 54.
116. E. Brems, Conflicting human rights: an exploration in the context of the right to a fair trial in the
European Convention for the Protection of Human Rights and Fundamental Freedoms, Human Rights
Quarterly, Vol. 27, 2005, p. 305.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

would tend to lean in favour of the applicants right in so far as any restriction on
his right has to be justified by the need to protect the rights of others: this leads
implicitly to establishing a presumption in favour of the right of the applicant.

B. Balancing of interests
Where two opposing provisions of one and the same instrument Articles 9 and
10 in this case contradict each other, the principle of proportionality is irrele-
vant. In this situation, the Court takes a different approach that of the balan-
cing of interests to check whether the right balance has been struck between
two conflicting freedoms or rights.117 Looking at it in another way, we are no
longer dealing with a freedom and the exceptions to it, but with an interpretative
dialectic that must seek to reconcile freedoms. Where does the point of equi-
librium lie between freedom of expression and freedom of thought, conscience
and religion?
There are those who believe that balancing interests is more a matter of rhet-
oric than of method. What is the real meaning of this balance metaphor? It is
a question of weighing up rights in relation one to another and giving priority
to the one to which greater value is attached. Three quite particular difficulties
arise here.
The first is what we call incommensurability of rights. The very image of the bal-
ance presupposes the existence of a common scale against which the respective
125
importance or the weight of different rights could be measured, which is highly
unrealistic. For example, finding the balance between a Churchs freedom of
religion and its followers freedom of expression is more like judging whether
a particular line is longer than a particular rock is heavy.118
The second is that of subjectivity. By using the metaphor of the balance, in fact
one leaves the court great freedom of judgment and this can have formidable
effects on judicial reasoning.119
The third difficulty lies in the fact that the parties are not in symmetrical positions
and so the importance attributed to each of their rights may depend on their
relative positions. The Otto-Preminger-Institut v. Austria judgment of 24 Septem-
ber 1994 is a good example of this.
The Austrian authorities objected to the showing of a satirical film by a cinema
club in Tyrol on the ground that it ridiculed the Christian faith in general. Whereas
it was a private association that invoked freedom of expression, the freedom of

117. See F. Rigaux, Logique et droits de lhomme in P. Mahoney, F. Matscher, H. Petzold and
L. Wildhaber (eds), Protecting Human Rights: The European Perspective, Studies in memory of Rolv
Ryssdal, Cologne/Berlin/Bonn/Munich, Carl Heymanns Verlag KG, 2000, pp. 1197-1211.
118. Bendix Autolite Cort. v. Midwesco Enterprises, Inc., et al., 486 U.S. 888, 897 (1988) (Scalia,
J., diss.). See, inter alia, R. Chang (ed.), Incommensurability, Incomparability and Practical Rea-
son, Cambridge, MA: Harvard University Press, 1997; and B. Frydman, Le sens des Lois, Brussels,
Bruylant/LGDJ, 2005, p. 436.
119. The Court, White v. Sweden, judgment of 9 September 2006.
Blasphemy, insult and hatred

religion was that of all persons of the Catholic faith who might feel offended by the
images in the film that were considered blasphemous. On the one hand we have a
private individual, and on the other a community of believers: the possibility can-
not be ruled out that the balance of rights was influenced, more or less consciously,
by the impression that an individuals freedom of expression had to be measured
or weighed against the interests of all Catholics in the Austrian province of Tyrol.
The Court cannot disregard the fact that the Roman Catholic religion is the religion
of the overwhelming majority of Tyroleans. In seizing the film, the Austrian author-
ities acted to ensure religious peace in that region and to prevent that some people
should feel the object of attacks on their religious beliefs in an unwarranted and
offensive manner.120

In fact, Roscoe Pound largely anticipated this danger as long ago as 1921 when
he wrote:
When it comes to weighing or valuing claims or demands, we must be careful to
compare them on the same plane. If we put one as an individual interest and the
other as a social interest, we may decide the question in advance of our very way
of putting it.121

There is yet another example in the I.A. v. Turkey judgment of 13 Septem-


ber 2005, concerning the conviction of a publisher on the ground that he had
published a novel which the courts considered insulting to Islam. The Court
126 rightly considered that the issue before it
involves weighing up the conflicting interests of the exercise of two fundamental
freedoms, namely the right of the applicant to impart to the public his views on reli-
gious doctrine on the one hand and the right of others to respect for their freedom
of thought, conscience and religion on the other hand.122

While pointing out that those who choose to exercise the freedom to mani-
fest a religion must tolerate and accept the propagation by others of doctrines
hostile to their faith, the Court considered that the present case concerns not

120. The Court, Otto-Preminger-Institut v. Austria, judgment of 24 September 1994. See also the Court,
Wingrove v. the United Kingdom, judgment of 25 November 1996, where the applicant complained of the
British authorities refusal to authorise the distribution, even limited to part of the public, of a video
film containing erotic scenes involving St Theresa of Avila and Christ. According to the authorities, the
film should be regarded as an insulting or offensive attack directed against the religious beliefs of
Christians and therefore constituted an offence against the blasphemy laws. The Court also con-
sidered that the state could legitimately have limited the applicants freedom of expression in order
to protect the rights of others, in this case their right of religious freedom. Thus it extends its interpret-
ation of Article 9 by stating that this provision implies the right of believers to be protected from pro-
vocative representations of objects of religious veneration. In this case the applicant also stressed that
the offence of blasphemy only covered attacks on the Christian faith, and more specifically the Angli-
can faith, and argued that this offence should therefore be seen as discriminatory. Here, however,
the Court refrained from answering that argument, merely pointing out that the degree of protection
afforded by the law to other beliefs is not in issue before the Court (paragraph 50). However, the
reality is indeed the fact that the film in question was an attack on the dominant religion. As F. Rigaux
observes, it is not freedom of religion but the power of a religion that is threatened (La libert
dexpression et ses limites, Revue trimestrielle des droits de lhomme, special issue, 1993, p. 411).
121. R. Pound, A survey of social interest, Harvard Law Review, Vol. 57, Nos. 1/2 (1943).
122. The Court, I.A. v. Turkey, judgment of 13 September 2005, paragraph 27.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

only comments that offend or shock, or a provocative opinion, but also an


abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a
certain tolerance of criticism of religious doctrine within Turkish society, which
is deeply attached to the principle of secularity, believers may legitimately feel
themselves to be the object of unwarranted and offensive attacks through [cer-
tain] passages.123 Consequently, it considers that the measure taken in respect
of the statements in issue was intended to provide protection against offensive
attacks on matters regarded as sacred by Muslims.124

C. The margin of appreciation

Conflicts of law are often highly controversial situations. Thus, they call for a
contextualised assessment which takes into account the sensitivities existing in
the societies where these conflicts arise. So it is not surprising that the doctrine
of national margin of appreciation is regularly invoked by the Court in cases of
this kind.

In the Wingrove v. the United Kingdom judgment of 25 November 1996, the


applicants film was banned on the ground that it contained blasphemous scenes
offensive to the Christian religion. In general terms, the Court finds that there
is no uniform European conception of the requirements of the protection of the
rights of others in relation to attacks on their religious convictions. What is likely
to cause substantial offence to persons of a particular religious persuasion will 127

vary significantly from time to time and from place to place, especially in an
era characterised by an ever growing array of faiths and denominations. By
reason of their direct and continuous contact with the vital forces of their coun-
tries, State authorities are in principle in a better position than the international
judge to give an opinion on the exact content of these requirements with regard
to the rights of others as well as on the necessity of a restriction intended to
protect from such material those whose deepest feelings and convictions would
be seriously offended.125 The Court also considers that its supervisory task may
prove difficult because concepts of sexual morality change, there are differing
views about the significance of religion in society, and the extent to which a
work may give offence is hard to determine.126

As with other approaches, the margin of appreciation comes up against limits.


Generally speaking, this self-limitation which the Court imposes on itself may
carry the risk of reducing the protection of the rights of others to a common
denominator far removed from a shared rule of ethics.127 It may also prove very

123. Ibid., paragraph 29.


124. Ibid., paragraph 30.
125. The Court, Wingrove v. the United Kingdom, judgment of 25 November 1996.
126. Ibid.
127. In the words of the former Registrar M.-A. Eissen, quoted by P. Lambert, Les restrictions la
libert de la presse et la marge dapprciation des Etats au sens de la jurisprudence de Strasbourg,
Revue trimestrielle des droits de lhomme, 1996, p. 155.
Blasphemy, insult and hatred

dangerous in religious matters, in so far as it may prompt a return to medieval


measures of surveillance and intolerance. Furthermore, the margin of appre-
ciation may also be merely a deferential attitude toward national authorities, as
can be seen, for example, in the Murphy v. Ireland judgment of 10 July 2003
in which the Court refused to interfere with a total ban in Irish law on religious
advertising in the audio-visual sector, because it noted that religion had been
a divisive factor in Northern Ireland and that consequently any advertising of
a religious nature might be regarded as offensive to persons belonging to dif-
ferent religions. Lastly, apart from the fact that the margin of appreciation can
be variable where fundamental rights are concerned, can it really be argued
that states are better placed to strike a balance between conflicting fundamental
rights? Yes, perhaps, if one believes that they should be regulated by legislation
rather than by the courts.

II. Towards new approaches


A. The choice of priorities
As is emphasised by P. Ducoulombier, hierarchy is sometimes taboo in legal
thinking, either for philosophical reasons relating in particular to the principle of
indivisibility of fundamental human rights or on more methodological or practical
grounds, some people thinking that such an approach is naive or pointless;128
128 other writers are in favour.129 Personally, I do not think one can escape the need
to try and establish criteria by which this exercise might be guided.130
For example, a distinction can be drawn between core rights, those at the heart
or centre, and those on the periphery. Freedom of religion has an inner and an
outer aspect. Its inner dimension that is to say, the right of everyone to have
a religion and to change it, or to have none at all would be among the core
rights. No limitation or restriction could be placed on it, even if linked to freedom

128. Ph. Frumer, La renonciation aux droits et liberts. La Convention europenne lpreuve de
la volont individuelle, Brussels: Bruylant, 2001; S. Van Drooghenbroeck, Lhorizontalisation des
droits in H. Dumont, F. Tulkens and S. Van Drooghenbroeck (eds), La responsabilit, face cache des
droits de lhomme, Brussels: Bruylant, 2005, pp. 381-2.
129. D. Shelton, Mettre en balance les droits: vers une hirarchie des normes en droit international
des droits de lhomme in E. Bribosia and L. Hennebel (eds), Classer les droits de lhomme, Brussels:
Bruylant, 2004, p. 153 et seq; see also D. Shelton, Normative hierarchy in international law,
American Journal of International Law, Vol. 100, No. 2 (April 2006), p. 291 et seq; D. Breillat, La
hirarchie des droits de lhomme in Droit et politique la croise des cultures. Mlanges Philippe
Ardant, Paris: LGDJ, 1999, p. 353 et seq; F. Sudre, Droits intangibles et/ou droits fondamentaux:
y a-t-il des droits prminents dans la Convention europenne des droits de lhomme? in Liber Ami-
corum Marc-Andr Eissen, Brussels/Paris: Bruylant/LGDJ, 1995, p. 381 et seq; O. Jacot-Guillermod,
Rapport entre dmocratie et droits de lhomme in Dmocratie et droits de lhomme, Proceedings
of the colloquy organised by the Greek Government and the Council of Europe, Kehl/Strasbourg:
N.P. Engel, 1990, pp. 49-72 (the author refers to a material hierarchy constructed by European case
law, via the concept of democratic society, p. 69); E. Lambert-Abdelgawad, Les effets des arrts de
la Cour europenne des droits de lhomme. Contribution une approche pluraliste du droit europen
des droits de lhomme, Brussels: Bruylant, 1999, p. 323.
130. Donna J. Sullivan, Gender equality and religious freedom: toward a framework for conflict
resolution, New York University Journal of International Law and Politics (1992), pp. 795 et seq.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

of expression when, for example, the latter entails incitement to hate speech,
violence or discrimination, on the basis of religious allegiance. In the Gndz
v. Turkey judgment of 4 December 2003, the Court emphasised that tolerance
and respect for the equal dignity of all human beings constitute the foundations
of a democratic, pluralistic society. That being so, as a matter of principle it may
be considered necessary in certain democratic societies to sanction or even pre-
vent all forms of expression which spread, incite, promote or justify hatred based
on intolerance (including religious intolerance).131 Conversely, death threats or
incitement to violence by religious leaders and groups against persons exercis-
ing their right to freedom of expression in religious matters are not acceptable.
Here, therefore, the way to ensure real enjoyment of the two freedoms seems to
lie in greater respect for what constitutes the hard core of religious freedom (or
of freedom of expression) and relaxation of the pressure to protect such periph-
eral elements as religious sensitivity.

The limits, or the difficulty, of this approach lie in the fact that, over and above
certain obvious factors (in particular inalienable rights), it is no easy matter to
identify the hard core. On the one hand, doctrinal attempts to establish a hier-
archy among the various rights have to date largely failed.132 On the other hand,
the same is true of attempts to identify exactly what the European Court regards
as the inviolable essence of each of the rights secured by the Convention.133

129
B. Practical concordance

This approach based on practical concordance between conflicting rights


has been subjected to the most detailed theoretical treatment, by the German
constitutionalist K. Hesse,134 and is to be seen in numerous decisions of the
Bundesverfassungsgericht.

The starting-point for this approach is the outright refusal to move in the direc-
tion of sacrificing one right to another. In other words, where rights are in con-
flict, it is not appropriate to turn straightaway to the balance in order to decide
which right weighs heavier and deserves to be upheld at the expense of all its
competitors. On the contrary, the aim should be, in an imaginative dialectical
perspective involving mutual concessions which attenuate contradictory require-
ments, to delay the inexorable sacrifice until the last possible moment. The novel
character of this approach lies in the fact that it fosters solutions that preserve

131. The Court, Gndz v. Turkey, judgment of 4 December 2003.


132. Frumer, La renonciation aux droits et liberts, pp. 522-7.
133. S. Van Drooghenbroeck, La proportionnalit dans le droit de la Convention europenne des
droits de lHomme. Prendre lide simple au srieux, Brussels: Bruylant/FUSL, 2001, chapter IV.
134. See K. Hesse, Grundzge des Verfassungsrechts der Bundesrepublik Deutschland, Heidelberg:
C.F. Mller, 20th edition, 1995, No. 71 et seq. On this practical concordance, see also F. Mller, Dis-
cours de la mthode juridique, transl. O. Jouanjan [from German], Paris: PUF, 1996, pp. 285-7, and
S. Van Drooghenbroeck, La proportionnalit dans le droit de la Convention europenne des droits de
lhomme, Brussels: Bruylant/FUSL, 2001, pp. 212, 709-10.
Blasphemy, insult and hatred

the two conflicting rights to the maximum rather than simply finding a point of
balance between them.

An example of this is seen in the llinger v. Austria judgment of 29 June 2006.


The applicant notified the Salzburg Federal Police Authority that on 1 Novem-
ber 1998 he would be holding a meeting at the municipal cemetery in front
of the war memorial in memory of the Jews killed by the SS during the Second
World War. He stressed that the meeting would coincide with the gathering of
Comradeship IV (Kameradschaft IV) to commemorate the SS soldiers killed dur-
ing the Second World War. The Salzburg police authority banned the meeting
and the public security authority dismissed the applicants appeal against that
decision. Both the police authority and the public security authority considered
it necessary to prohibit the meeting planned by the applicant in order to avoid
any disturbance to the commemorative meeting organised by Comradeship IV,
which was regarded as a popular ceremony for which no authorisation was
required. In these circumstances, the Court was not convinced by the Govern-
ments argument that allowing both meetings while taking preventive measures,
such as ensuring police presence in order to keep the two assemblies apart, was
not a viable alternative which would have preserved the applicants right to free-
dom of assembly while at the same time offering a sufficient degree of protection
as regards the rights of the cemeterys visitors.135 In other words, the govern-
130
ment presented the conflict as necessary, whereas it could also be regarded as
accidental and as originating in the attitude of the authorities.

The limitation on the practical concordance approach is that it lacks a con-


structive dimension: it does not include the need to try and change the context
in which the conflict arose. In other words, it takes no account of the need to
develop imaginative solutions in order to limit the conflict itself and prevent it
from arising again in the future.

C. A constructive procedural approach

This final approach operates in two stages. First of all, it takes account of the fact
that, in many situations, the conflict between fundamental rights has its origin in
the existence of a certain context which creates the conditions for conflict. Con-
flicts appear inevitable as long as these conditions are not taken into account
and those that can be changed are not identified. In concrete terms, the state
must explore all avenues that may enable the conflict to be overcome before
pleading that it is facing a dilemma and perhaps also recognise its responsi-
bility in creating the context which gave rise to the conflict.

In the area of concern to us here, the Otto-Preminger-Institut v. Austria judgment


of 20 September 1994 strikes me as a perfect counter-example. In fact, all the
conditions seemed to be present for the persons likely to be offended by the

135. The Court, llinger v. Austria, judgment of 29 June 2006.


Conference on Art and Sacred Beliefs: from Collision to Co-existence

works at issue not to be exposed to them. The film was intended for showing
in a film club to a select audience, its subject had been announced in the pro-
gramme, and access was denied to minors under the age of 17. So there was
no reason for persons who might have been offended to go to the club and see
it. The Court states that the very fact of advertising the screening of the film and
the nature of it was a sufficiently public expression to give offence.136 Never-
theless, as P. Wachsmann says, that analysis means that in the Courts view the
offence lies not in the fact of exposing them directly to images such as to offend
their faith, but in the mere fact of drawing their attention to the existence of a
work which they would consider blasphemous, and ultimately turns against
the association the legitimate precautions which it had taken to prevent anyone
who might feel his beliefs to be under attack from seeing the film.137
The same holds true of the Wingrove v. the United Kingdom judgment of 25 Novem-
ber 1996. The possibility was open to the authorities of limiting distribution of the
video to licensed sex shops or to persons above a certain age.138 In the circum-
stances, one may question the proportionateness of the measure chosen by the
authorities, that is to say, the total prohibition on the films distribution.
Then this is the second stage once every step has been taken to avoid a
conflict, procedures for settling it should be openly debated. The important thing
in this connection, to my way of thinking, is not so much to apply predefined
arithmetical formulae or to invent architectural structures of some sort to guide
131
judicial reasoning, but to bring about the conditions for a debate in which all
interested parties without exception can express their views, so that everyones
interests can be taken into account and into consideration in the discussion.
This is precisely the free-ranging discussion whose prerequisites were stated by
Habermas in his Ethique de la communication: Everyone must be able to raise
the problem inherent in any statement, whatever it be; everyone must be able to
express his views, wishes and needs; no speaker should be prevented by author-
itarian pressure, whether from inside or outside the discussion, from exercising
his rights [of free discussion].139 Furthermore, such procedures offer the advan-
tage of fostering an ongoing re-assessment of provisions, which might make it
possible for different rights to be reconciled. This question of reconciliation of
rights is to my mind essential, and I believe that open, public debates on issues
linked to religion and religious beliefs, in complete objectivity and impartiality,
can certainly assist it.

136. The Court, Otto-Preminger-Institut v. Austria, judgment of 20 September 1994.


137. P. Wachsmann, La religion contre la libert dexpression: sur un arrt regrettable de la Cour
europenne des droits de lhomme, Revue Universelle des Droits de lHomme, No. 12 (1994),
pp. 445-6. The Court, Wingrove v. the United Kingdom, judgment of 25 November 1996.
138. The Court, Wingrove v. the United Kingdom, judgment of 25 November 1996.
139. J. Habermas, Notes programmatiques pour fonder en raison une thique de la discussion in
Morale et communication, Paris: Cerf, 1986, pp. 110-11.
10. Reshaping religion and religious criticism
in ultramodernity
Jean-Paul Willaime
Director of Studies, Ecole Pratique des Hautes Etudes, Sorbonne University, Paris,
Director of the European Institute of Religious Sciences, EPHE, Paris

Notwithstanding the unquestionable secularisation of populations and institu-


tions, religion has re-emerged in force as a subject of public debate: it is a mat-
ter of crucial public concern in national societies and at European level. Modern
societies thought they had resolved the issue of religions place and role in a
democracy once and for all, but new issues are arising as a result of growing
religious and philosophical pluralism. Relations between different religions, and
between religious and secular views of humanity and the world, have become
more complicated, and in some cases very hostile, despite the development of
numerous forums for intercultural and interfaith dialogue. In the wake of the
controversy over the cartoons of the prophet Muhammad, a leading expert on
figurative art in Islam made the following statement on a French radio station:
What we are seeing at present is not a clash of civilisations or religions, but a clash 133
of sensibilities and resentments. The slightest provocation is enough to bring them
flooding back. This is no accident, but a symptom we must learn how to ease.140

The clash of sensibilities is a crucial issue, especially if a religious community feels


whether rightly or wrongly makes no difference deep resentment towards
Western societies. If the Muslim communitys resentment is at its height, this
is clearly, as Franois Boespflug points out,141 a geopolitical factor that must be
addressed.
Finding ways to live alongside one another despite our differences is a top-
ical issue in European societies. The approaches adopted by national govern-
ments have an international impact (as shown by Sikh demonstrations in India
against the prohibition on wearing turbans in state schools in France). Local and
regional issues have global resonance, thanks to the internationalisation of reli-
gious belief and the power of the media, especially where there are those who
strive to ensure that this is the case because it is in their interest to do so. The
issue of the demarcation between the rights of different groups, and the rela-
tionship between freedom of expression and religious freedom in particular, is
therefore arising afresh in the context of globalisation. I would like to start by

140. Michael Barry, quoted by Franois Boespflug in Caricaturer Dieu? Pouvoirs et dangers de
limage, Paris: Bayard, 2006, p. 181.
141. Boespflug, Caricaturer Dieu?, p. 181. Boespflug talks about the explosive potential of Islams
narcissistic wound and the accompanying surge in hatred, p. 182.
Blasphemy, insult and hatred

giving a brief overview of the socio-cultural position of religious belief in contem-


porary European societies, and then explore the issue of criticism of religion and
religious criticism in the current climate.

I. Socio-cultural position of religious belief


in contemporary ultramodernity

Predictions of what will become of religion in modern societies have often been
dominated by the concept of a transfer model of secularisation, which extrapolates
the historical and legal meaning of secularisation, extending to sociological analysis
the concept whereby secularisation denotes the transfer of ownership or supervisory
authority from the religious to the secular. Reference has been made, for instance,
to the secularisation of science, politics, art, education and the family, designating
a process by which these institutions and spheres of activity gain autonomy from
religious supervision. The transfer model of secularisation has fostered a representa-
tion of modernity as an exit from the religious sphere, as if it were a zero-sum game
in which more modernity means less religion. In this scenario, the secular supplants
the religious in both its power to lay down rules and its sphere of influence, in such
a way that religions social impact and prescriptive claims become increasingly
limited.

134 This is the theory, developed in various forms by a number of sociologists,142 of the
individualisation and privatisation of the religious sphere (which may not necessar-
ily coincide) and religions loss of influence in modern Western society. Although
the transfer model of secularisation typified modernitys institutionalisation (the indus-
trial society) and effective realisation (the triumphant modernity of the post-war eco-
nomic boom), it is the secularisation of secularisation itself that typifies what I call
ultramodernity: an ultramodernity in which hyper-secularisation is coupled with a
degree of religious revival. Europe is therefore post-secular as well as post-Christian.

The ultramodern age of modernity

Drawing freely on the work of Anthony Giddens and Ulrich Beck, I have defined
ultramodernity as movement plus uncertainty, in contrast to the definition of
modernity as movement plus certainty. The modern focus on certainty (encom-
passing scientific, economic, political, moral and educational progress) has
given rise to a clash between the secular and the religious as forms of moral
authority and a fairly direct opposition between modernity and religion. The
ultramodern focus on uncertainty, for its part, is transforming the secular and
religious spheres at the same time, thereby reshaping the relationship between
them.

142. Jean-Paul Willaime, La scularisation une exception europenne? Retour sur un concept et sa
discussion en sociologie des religions, Revue Franaise de Sociologie, Vol. 47, No. 4 (October-
December 2006), pp. 755-83.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

I use the term ultramodernity to denote a radicalisation of modernity, as


opposed to an exit from modernity. The ultramodern age is a period in which
modernity is disenchanted and problematic, suffering the repercussions of the
systematic, desacralising reflexivity it has triggered: nothing is spared, not even
the delight that modernity was able to elicit during its conquering phase. Ultra-
modernity consequently means that all the secular ideals that, in a critical relation-
ship to religion, were held up as new certainties and served as powerful forces
for mobilising society are no longer absolute. Compared with secularisation as
the transfer of sacralisation from religion to other spheres (economic, political or
moral), which corresponds specifically to the phase of secularising modernity,
ultramodernity is a secularised modernity in which the secularising forces them-
selves undergo secularisation: the demythologisers are demythologised.

Religion caught between individualisation and globalisation


In the current context of ultramodernity, religion in Europe may now be said to
be caught between the rationales of individualisation and globalisation. The
rationale of individualisation is reflected in a kind of do-it-yourself approach that
incites some to abandon all forms of religion, and others to discover or experi-
ment with other religions. The rationale of globalisation throws our perceptions
of religion wide open, bringing supposedly distant religions closer together. It
is becoming increasingly difficult to assign political and social institutions to
a particular religion. It is a time of contact and clashes between humanitys 135

different forms of religious expression. Such contact may either foster friendly
dialogue with a highly intellectual content, or it may fuel fear, stereotypes and
antagonism.
This institutional deregulation is resulting in a situation of anomie character-
ised by the social and cultural fragmentation of religious belief: the symbols,
texts and figures specific to a given religion are escaping the latters bounds,
for they are subject to various kinds of individual and collective appropriation,
both private and public, including appropriation for spiritual purposes but also
for cultural, artistic, media, advertising, political and satirical purposes. In other
words, contemporary religious belief is no longer characterised by symbolic
boundaries in which each faith is in charge of its own, but has been thrown
wide open: as it has become more difficult to place individuals under ecclesias-
tical house arrest, the symbols, texts and figures specific to a given religion now
circulate, living their own lives, as it were. In such a climate, it has become con-
siderably more difficult to maintain semantic and symbolic order, both socially
and culturally speaking.

Religions as identity subcultures


Religions tend to form subcultures that give their members direction, thereby
enabling them to find their bearings in a pluralist society, as well as offering
reference groups and a defined set of religious beliefs people may choose to
Blasphemy, insult and hatred

adopt. The same process may be observed in secular humanism, which is under-
going a militant revival in the face of the religious resurgence. Paradoxically,
hyper-secularisation reinforces religions specificity, giving rise to reassertions of
identity, including radical forms of fundamentalism. At the same time, this fuels
new tensions between religious and secularist conceptions of humanity and of
the world. As a result of hyper-secularisation, religious identity is being recon-
structed as a minority identity, with religion taking hold in the form of subcultures
and sectarian frameworks within a secularised, pluralist global society. This is
also generating sectarian niches and various forms of religious radicalism.

In the face of cultural McDonaldisation, it has become trendy to be different,


whereas this tended to be labelled cultural backwardness during the period
of triumphant modernity. Whereas religions might once have been seen as trad-
itional forms of expression, resisting a conquering modernity that tended to per-
ceive them as obsolete realities in an advanced state of decline, they may now
be regarded as socially significant reference groups in the context of an ultra-
modern society so secularised that it has become powerless to signify collective
meaning in the name of a compelling mythology. For both majority and minority
religious groups, religious belief is being reconstructed in the form of identifiable
subcultures in a pluralist environment, with a more or less significant counter-
cultural component. It is also being reconstructed in the form of activist groups,
136 which individuals join out of personal choice rather than being born into them,
and thus in the form of individual religions of converts linked to transregional
and transnational activist networks rather than to particular geographical areas.
It is in this sense that we may now talk about glocalisation: a combination of
the global and the local.

Ultramodernity: not less religion, but a different kind of religion

We are thus seeing an enormous, enduring change in the place of religion and
religious practice in modern societies, which goes beyond the evaporation of
religious observance. Ultramodernity does not mean less religion, but a differ-
ent kind of religion. Ultramodern forms of religious belief or non-belief have
changed both the way in which we relate to metaphysical truths and our social
experience of such religious and philosophical identifications. In a nutshell, reli-
gious ultramodernity is shaking up traditional boundaries between believers and
non-believers: believers are starting to doubt, while agnostics are taking an
interest in spirituality. Among those with no religion, the European Values Study
distinguishes between believers and non-believers. It is not so much a case of
more people becoming atheists as of a distancing from traditional religious insti-
tutions. In the religious sphere, as in other spheres, people want to carve out
their own paths independently and be free to have their own experiences. The
socialisation of religious and philosophical choices is becoming more flexible,
taking place through peer networks and local community involvement rather
than membership of vertically regulated institutions.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

Significantly, while reference is commonly made to post-Christian societies,


Jrgen Habermas, for his part, talks about secularisation in a post-secular
society,143 which is not incompatible with the former term. This prompts us to
wonder what is becoming of religion in post-Christian European societies and
of secularisation in post-secular societies. Secularisation can no longer be
analysed in terms of modernitys triumph over religious traditions regarded as
obsolete. The situation is more complicated than that, and consideration must
be given to secularisation in the age of what I call ultramodernity.144 The hyper-
secularisation of ultramodernity is thus fostering a degree of religious revival.
Except in its extremist expressions, this revival has no impact on the process
whereby modern societies are gaining autonomy from religious authorities. In
the context of globalisation, it reflects a comprehensive reconfiguration of the
religious, political and cultural spheres.

Universalisation of heresy
We live in liberal societies made up of individuals who regard themselves as
emancipated; those people or groups who protest against this state of affairs
are soon viewed as backward-looking reactionaries. While ordered societies
exclude the errant and the non-conformist, societies that value change tend to
exclude those who settle down and resist the pervading wanderlust. The heretics
of the 21st century are consequently not the heterodox, but rather the orthodox,
in the psychosocial sense of the term. For heresy, in the very sense of a choice, 137

has now become the norm, thanks to the individualisation and subjectivisation
of religious belief. That is Peter Bergers well-known argument:
the modern individual is faced not just with the opportunity but with the necessity
to make choices as to his beliefs. This fact constitutes the heretical imperative in the
contemporary situation. Thus, heresy, once the occupation of marginal and eccen-
tric types, has become a much more general condition; indeed, heresy has become
universalized.145

Whereas the focus in previous centuries was on heretics errant beliefs and the
differing beliefs of the other known religions at the time, 21st-century exclusion
targets the various orthodoxies strong beliefs and symbolic integration.
The eccentric and marginal are no longer the heterodox, but the orthodox,
who set themselves apart from the conformism of universal heresy by referring
to a stable belief system. In this respect, it may be argued that one of the lead-
ing heretical figures of the 21st century is none other than the Pope. Relativist

143. J. Habermas, Glauben und Wissen (Friedenspreis des Deutschen Buchhandels 2001), Frankfurt
am Main: Suhrkamp, 2001, p. 12.
144. I refer here to two of my studies: Religion in ultramodernity in James A. Beckford and
John Walliss (eds), Theorising Religion: Classical and Contemporary Debates, Aldershot: Ashgate,
2006, pp. 73-85; Reconfigurations ultramodernes, Esprit (March-April 2007), No. 3-4 [Efferves-
cences religieuses dans le monde], pp. 146-55.
145. Peter Berger, The Heretical Imperative: Contemporary Possibilities of Religious Affirmation,
Garden City NY: Doubleday, Anchor Books, 1979, pp. 30-31.
Blasphemy, insult and hatred

ultramodernity cannot stand the idea of individuals deliberately choosing to


join a highly norm-regulated community. In fact, such decisions, which give rise
to sectarian individualism, greatly perturb an ultramodernity that tends to iden-
tify religion with an intolerable individual dependence on transcendence, and
freedom with a total absence of restrictive social ties (as if it meant being free
from all ties). In any event, ultramodernity appears to find it incomprehensible,
and struggles to accept, that an individual may feel free and autonomous while
being committed to a religion and attached to a community.

II. Criticism of religion and religious criticism


From an anti-clericalism based on emancipation
to one designed to provoke146
Philosophical, scientific and political criticism of religion was once, and to some
extent still is, a key structural component of Western modernity. Such criticism
went hand in hand with an anti-clericalism based on freedom or emancipation,
which did not shy away from attacking religion and making fun of its represen-
tatives. Such anti-clericalism was especially prevalent in Catholic countries, tar-
geting priests in particular, and was part of a wider condemnation of religion,
which was seen as opposing scientific progress, the development of freedoms
and moral advance. It is typical of modernity as a movement seeking to tear
138
down traditions and aspiring to a better future. It attracted considerable sup-
port from right- and left-wing ideologies of progress. Criticising the power of the
clergy, it desacralised religious representatives rather than religions themselves.
It was associated with a view of freedom as a form of fulfilment.

As Philippe Portier points out, however, freedoms status has changed for a
growing segment of the population, particularly among the artistic and eco-
nomic elites147 (and, I might add, the media elite). It used to be seen as a
freedom of fulfilment, which would lead the subject, in a break with his or her
internal self, towards universal reason and an openness to others. It is now
increasingly regarded as a total lack of restrictions, enabling each individual
to pursue his or her desires and interests to the full, without a care for his or
her fellow human beings. As Philippe Portier explains, the anti-clericalism of
emancipation based on the condemnation of ecclesiastical power has conse-
quently given way to an anti-clericalism designed to provoke, which seeks to
hijack religious symbols, and ultimately to the transgression of political as well
as religious sacredness.

According to Philippe Portier, this anti-clericalism of derision, which is typ-


ical of our ultramodernity, has three components. Firstly, the content has

146. I owe these ideas to Philippe Portiers perspicacious study La critique contemporaine du
religieux. Essai dinterprtation in Danielle Corrignan-Carsin (ed.), La libert de critique, Paris:
LexisNexis, Litec, 2007, pp. 141-56.
147. Portier, La critique contemporaine du religieux, pp. 151-2.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

changed: in contrast to the past, contemporary Christian anti-clericalism focuses


less on ecclesiastical institutions and the greed or fanaticism of the religious
hierarchy than on the very figure of Christ, or even God himself. Secondly,
whereas anti-clericalism used to be expressed in writing, it is now much more
common for it to be expressed through images. It is designed to provoke,
rather than to explain. Thirdly, whereas the main designated enemy used to
be Catholicism, it is now Islam that tends to bear the brunt of such anti-cleri-
calism (although a degree of anti-Catholicism is also re-emerging). Advertisers
also like to distort the main motifs of eastern religions such as Zen Buddhism.
The anti-clericalism based on emancipation still exists, notwithstanding these
developments. Inspiring much of the criticism of religion in general as well as
particular religions, it is an intrinsic feature of modern societies that guaran-
tee both religious freedom, within the limits of democracy and human rights,
and the freedom to criticise religion, change religion or choose not to belong
to any religion. I would simply point out that this form of anti-clericalism has
been revived in the face of the reassertion of religious identities (particularly
through traditional and/or charismatic movements) and the growing place of
some expressions of Islam in international current affairs. The anti-clericalism of
emancipation had softened in response to religions loss of power and the head-
way made by secularisation; in some quarters, it was even thought that religion
was losing momentum for good (you dont fire at an ambulance).
139
Confronted with the awakening of religious identities in Europe and the rest of
the world, and alerted by the fact that religions are once again emerging as
the bearers of ideals and norms different from those of secular society, some
even fear a return of clericalism, if not as is the case in France a challenge
to the secular state. In the face of a secularised religion that kept a low profile,
the anti-clericalism based on emancipation had nodded off: it is now waking up
alongside the religions it wishes to combat. Disputes over Muslim headscarves
in schools are a good example of this trend, particularly given that they involve
the issue of womens emancipation, the status of women being a sore point in
clashes between religious and secular views of humanity and of the world. In
short, the current climate is still characterised by a recurrent conflict between
emancipatory modernity and religions. What we are talking about here is more
like an anti-clericalism of communication: people do express themselves, but
in order to communicate a certain criticism of religion in the context of public
debate.

The anti-clericalism of derision as iconoclastic criticism of religion


Yet it is more complicated than that, and therein lies the problem. The anti-
clericalism of provocation and derision typical of the ultramodern individual
without any ties who regards his or her freedom, and freedom of expression in
particular, as a lack of restrictions and the absolute right to say and do what-
ever he or she pleases without a care for anyone else has another side. The
Blasphemy, insult and hatred

anti-Christianism of some black metal bands may be playful and artistic, but it
has also caused churches to be set alight and graves to be desecrated. Accord-
ing to Franois Boespflug,148 in a fairly recent development, French society has
decided it is done with, or rather that it would like to be done with, any policing
of images, or just about. It now censures the very idea of censorship, regard-
ing the concept of blasphemy as completely obsolete, except paradoxically
when it comes to vocally asserting the sacred right to utter it in circumstances
such as those we now face. Self-censorship is now the only means of avoiding
many disastrous confrontations: it is all that is left. Let us hope that it derives from
sources other than fear.
Surely there is a danger here of slipping into gratuitously offensive expression,
as the European Court of Human Rights describes expression that does not con-
tribute to any form of public debate conducive to progress in human affairs.149
In the anti-clericalism of derision and provocation, is it not a case of expressing
oneself rather than communicating, and seeking first and foremost to indulge
oneself? Does not this type of anti-clericalism seek to desacralise for the sake
of it, just as others seek to profane for the pleasure of transgressing? The anti-
clericalism of derision aims to shock; it is a form of criticism that deliberately sets
out to be provocative. One thing is certain, writes Franois Boespflug, Free-
dom of expression is a caricature of itself when it becomes its own end and, per-
haps because it does not know what to express, feels such a compulsive need to
140
assert itself simply for the sake of it.150
If we have moved on from modern, emancipatory criticism of religion to icono-
clastic criticism directed at religious sensibilities, have we not also moved on
from the reasoned religious criticism of modern secularity to the iconoclastic
criticism of ultramodern secularity? In other words, it is not so much a collision
between two lines of argument as a clash of sensibilities. The existential insecur-
ity of Western ultramodernity may give rise to gratuitous, provocative criticism
of religion, in contrast to the social, political and intellectual criticism of eman-
cipatory modernity.

The anti-secularism of derision as iconoclastic criticism of secularity


As I was saying, it is more complicated than that. As well as social, philosoph-
ical, artistic and other criticisms of religion, which echo Western modernitys
critical relationship to religion in various ways, there is now also religious criti-
cism of Western modernity. According to the British sociologist Grace Davie,

148. Boespflug, Caricaturer Dieu?, p. 190.


149. See Patrice Rolland, La libert dexpression. Sectes, libert de religion et libert dexpression
(arrt Paturel du 22 dcembre 2005), in La France et la Cour Europenne des Droits de lHomme.
La jurisprudence en 2005. Prsentation, commentaires et dbats, Brussels: Bruylant, 2006 (Cahiers
du CREDHO No. 12/2006), p. 133.
150. Boespflug, Caricaturer Dieu?, p. 192, who points out, incidentally, that the Danish newspaper
that published the cartoons of Muhammad did so in order to test freedom of expression in Denmark,
p. 12.
Conference on Art and Sacred Beliefs: from Collision to Co-existence

for instance, it is just as modern to use the resources of religion to criticise the
secular as it is to use the secular to criticise the religious.151 Furthermore, in the
face of forms of religious expression that for a long time were more closely tied
to specific cultural spheres, such as Arab-Muslim civilisation, Western modernity
is also being challenged and relativised by other cultures view of it.
Internal and external religious criticism of Western modernity in the ultramodern
age is bringing religion back into the public arena, insofar as issues touch-
ing on our understanding of individuals humanity (including gender difference)
are increasingly the subject of public debate and political decisions: bioethical
issues of the beginning and end of life, cloning, issues around homosexuality
and parenting, and so on. Religions return to the collective decision-making
arena again raises the issue of the boundaries of religion and religious freedom,
along with the issue of freedom of expression in relation to religion. In the face
of a Western hyper-secularity challenged by religions return to the public arena,
and the paradoxical evaporation and resurgence of the sacred, some may find
it intolerable to be confronted by enduring systems of meaning to which people
are strongly attached. This may give rise to a propensity to gratuitous provo-
cation and reinvention of the sacred through the very transgression of that which
others hold sacred.
External and internal religious criticism of Western modernity may also help to
safeguard the modernity of emancipation by saving it from a universal relativ-
141
ism that might in fact place it in jeopardy. However, such religious criticism of
secularity also derives from the iconoclastic tendency of the ultramodern age of
modernity. It seeks to shock Western secularity and ultramodern secular sensibil-
ities by reaffirming traditional approaches to gender relations, for instance: in
response to an advertisement showing a priest kissing a nun on the mouth, reli-
gious iconoclasm will criticise Western modernity by contrasting veiled women
with the sexist portrayal of women in advertising. The contemporary backdrop
is not so much a war between gods as a war between religious and secular
sensibilities, a war between iconoclasms in a globalised image culture. Rad-
icalisation of the sacredness of transgression is met with radicalisation of the
sacredness of prohibition. Such derision and gratuitous provocation can sweep
everything away in their wake, including rational and emancipatory aspects of
modernity along with religion as a source of wisdom and spiritual elevation.

Conclusion
In this climate, the need to strike a balance between freedom of expression
and freedom of religion is once again a topical issue. Freedom of expression,
be it secular or religious, is one of democracys achievements.152 However,

151. Grace Davie, Europe: The Exceptional Case. Parameters of Faith in the Modern World, London:
Darton, Longman & Todd, 2002, p. 161.
152. Franois Boespflug rightly states: In any event, it would be extremely helpful, both for world
peace and in the very name of intelligence and friendship, if those Western media that claim to be
Blasphemy, insult and hatred

secularist iconoclasts indulge in provocative criticism of religion that is no credit


to modernity in its role as a vehicle for rationality and emancipation that elevates
human beings and sets them free. Likewise, religious fundamentalists indulge
in provocative criticism of secularity that is no credit to religion in its role as a
vehicle for wisdom and spirituality that elevate human beings and set them free.
Freedom of expression must find a middle road between the secular fundamen-
talists of transgression and the religious fundamentalists of sacralisation, bearing
in mind that criticism however radical it may be, and regardless of whether it
is secular or religious must be permitted in a democracy. Ultramodern recon-
figurations of religion clearly encompass the reshaping of both secular criticism
of religion and religious criticism of secularism.

142

enlightened and to advocate freedom of expression realised that the exercise of the latter, the funda-
mental goodness of which cannot be overstated, may be ambiguous, if not detrimental. Depending
on how it is used, it may in fact drift towards a licence that is by turns provocative and contemptu-
ous, playing along with xenophobia or racism, or, on the other hand, with a modicum of discipline,
turn into a culture of difference, respect, unbridled curiosity, pluralistic interpretation and the intermin-
gling of ideas and beings, without which any tradition will wear out, voicing rebellion as and when
necessary (Boespflug, Caricaturer Dieu?, pp. 191-2).
11. Conclusions
Pieter van Dijk
member of the Venice Commission, The Netherlands

1. This round-table conference was very instructive for the members and staff
of the Venice Commission, and assisted them greatly in preparing the Commis-
sions final report on the regulation and prosecution of blasphemy, religious
insult and incitement to religious hatred, which will be presented to the plenary
session of the Commission in due time.
2. The scopes of the rights of freedom of expression and freedom of religion
and belief, and the intersection between those rights, are very topical issues that
have raised vehement and even violent discussions, especially in recent years.
In the opinion of some, the protagonists of freedom of expression, includ-
ing artistic freedom, give too absolute a character to this right, ignoring or
even expressly denying the right to have ones religion and religious feelings
143
respected. In the opinion of others, one should not grant so much scope to the
protection of freedom of religion and belief that an open, critical debate about
religions and religious practices becomes impossible.
It is very difficult to find the right balance between the two rights and the claims
they imply in each and every situation. This was the main challenge during
the round-table conference. But it is, of course, also the daily challenge that
faces national administrative and judicial bodies, international organisations
and international judicial bodies, such as the European Court of Human Rights
and the United Nations Human Rights Committee. And, indeed, it is the chal-
lenge with which the Venice Commission is confronted in preparing its opinion
at the request of the Parliamentary Assembly of the Council of Europe. The Com-
mission is, therefore, fortunate to have found highly qualified representatives
of some of these bodies, and other experts, prepared to give its research and
discussions some guidance.

The round-table conference: a summary


First session: the intersection between freedom of expression
and freedom of belief
3. Judge Tulkens of the European Court of Human Rights addressed the ques-
tion of how to reconcile two fundamental rights that find both protection in the
European Convention on Human Rights, but also conflict in certain aspects. She
Blasphemy, insult and hatred

pointed, in a more general way, to the issue of the mutual relationship of human
rights. She indicated that the traditional methods of solving mutual conflicts,
along the lines of necessity and proportionality of restrictions of their full enjoy-
ment, do not always lead to a clear and objective result in the present circum-
stances, problematic as the balancing of the interests involved appears to be.

Madame Tulkens submitted that we should perhaps have the courage to set pri-
orities within and between human rights, not only according to the categories
of absolute (non derogable) rights and relative (derogable) rights, but by
defining the core of the individual rights and the core rights. On that basis, or
failing agreement about that approach, broad deliberations towards consensus
should take place about the evaluation or re-evaluation of all aspects involved,
in the context of the actual circumstances, enabling a practical co-existence of
the different rights in their essence.

4. Mr Pillay, member of the United Nations Committee on Economic, Social and


Cultural Rights, emphasised the special responsibility that freedom of expression
carries with it. Expressions that show lack of respect for the opinions or con-
victions of others, especially those that are very valuable to them like religious
beliefs, deserve less respect and protection. He referred in that context to the
2007 report of the UN Special Rapporteur on Freedom of Religion or Belief and
to the 2006 report of the same rapporteur and the UN Special Rapporteur on
144
Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related
Intolerance. They addressed not only the legal but also the social aspects of ten-
sions in the present world between different ethnic and religious groups.

Mr Pillay also quoted from two decisions of the UN Human Rights Committee on
the interplay between the right to freedom of belief and the right to freedom of
expression, and the permissible and restricted limitations that may be placed on
those rights. In his opinion, blasphemy should be decriminalised, but religious
hatred penalised.

5. Mr Gunn of the OSCE/ODHIR Advisory Panel of Experts on Freedom of


Religion or Belief introduced into the discussion the aspect of freedom of reli-
gion and belief of minority groups. In that connection, he pointed out certain
relevant OSCE documents, such as the Vienna Concluding Document of 1989,
that included very advanced provisions on freedom of expression and freedom
of religion, and their respective limitations.

Mr Garay of the same Advisory Panel proposed, as a method of finding a prac-


tical balance, the adoption of codes of conduct by certain professional groups,
such as journalists.

Second session: immunisation of art versus immunisation of religion


6. Professor Alivizatos of the University of Athens drew our attention to the fact
that no definition of art exists, nor any criteria for determining what is art
Conference on Art and Sacred Beliefs: from Collision to Co-existence

and what is not. He indicated the relevance of the context and circumstances
in which a certain artistic expression is made, and of the precise contents of
the expression concerned and the purpose of the artist. He also pointed out the
problem of how to define in what cases and circumstances a person is justified
in feeling personally offended or threatened by an expression that does not
insult him or her personally but the religion or religious group to which he or
she belongs.

7. Mr Willaime, Director of Studies at the Ecole Pratique des Hautes Etudes


and Director of the Groupe Socits, Religions, Lacits, France, put his remarks
within the context of the growing secularisation of modern society, accompanied
by growing anti-clericalism viewing religion as a concept that is opposed to
progress in science and freedoms, and opposed to the emancipation of the
people. On the other hand, there is, however, an import of religion into our
Western societies, and, as a consequence, a growing role of religion in society.

Against that background, Mr Willaime pointed out the vital importance of inter-
religious dialogue. In his opinion, a better understanding of each others beliefs
and motives may diminish sensitivity for the expressions of the other. He also
indicated that the transnationalisation of certain religions, and the changing
sociocultural position of both religion and laicism, make us more familiar with
the convictions of others but, at the same time, create more tension because of
interferences and threats from outside into ones religious beliefs and prac- 145

tices or ones adherence to laicism. Globalisation of convictions and thoughts is


accompanied by individualisation.

8. Mr Fahri, founder of the Mouvement Juif Libral de France, provided very


pertinent information about the specific position of art in Judaism, from an his-
torical and a religious perspective. Against that background he explained that
for Jews an image may more easily have the character of blasphemy than would
seem justified in the eyes of others. He also explained, however, that this specific
feature has no static scope and contents, and may and does develop in time. In
that context, too, the intention of the artist or maker is of importance.

Third session: normative answers to blasphemy

9. Mrs Flanagan, Head of the Office of the Attorney General of Ireland and
member of the Venice Commission, provided information, in addition to
Professor Christians comparative survey, about domestic law and legal prac-
tice on hate speech and religious insult. She also gave some insight, from her
own practical experience, into the various difficulties of prosecuting alleged viol-
ations of the prohibition of hate speech and religious insult because of lack of
clear definitions, difficulties of proof and possible counter-productive effects. It is
a challenge for the Venice Commission, in its opinion, to give both the domes-
tic legislatures and the executing authorities some guidance on how to clarify
Blasphemy, insult and hatred

and implement existing legislation without ending up in more and more new
legislation.
10. Mr Sarafianos and Mr Tsapogas, board members of the Hellenic League for
Human Rights, also adding to Professor Christians survey, provided interesting
information about Greek case law. They pointed to the necessity problematic
though it may be of applying objective criteria and standards, and of finding
a balance between respect for individual feelings and the collective character
of religions and beliefs. They supported the provisional opinion of the Venice
Commission that (lack of) adequate legislation is not the problem. In implement-
ing the applicable legislation, the authorities have to be flexible and take into
account actual circumstances and developments in the country and its popula-
tion. The special situation in Greece, with the dominant position of the Greek
Orthodox Church, should be taken into account without however losing sight of
European standards on equality and pluriformity.

Panel discussions
The round-table conference ended with two panel discussions.
Panel I addressed the issue Is there an ethics of responsibility for artists?
Among the panellists were an art historian, a film director, a poet and a
146 songwriter.
Panel II discussed the question Is there an ethics of responsibility for journal-
ists? This panel included a publisher, two journalists, an editor-in-chief and car-
toonist of a monthly review and a former minister for media.
Both panels, and especially the very lively discussion among the panellists and
between them and the audience, provided a very realistic and practical insight
into the conflicting interests and values involved in daily practice at the intersec-
tion between freedom of expression and freedom of belief.

Concluding remark
The Venice Commission is much indebted to all those who participated in the
round-table conference and offered it very valuable scientific and practical infor-
mation about the theme of the report it has to prepare.
This holds good, first of all, for the many experts who took the trouble of travel-
ling to Athens and sharing their expertise and practical experience. The large
and diverse audience contributed to the exchange of information and experi-
ence by their active participation. But this conference could not have taken
place without the preparatory work, the organisational achievements and the
hospitality of the Hellenic League for Human Rights, which co-chaired it, and the
facilities provided by Megaron Plus. Finally, the multi-lingual dialogue was made
possible thanks to the able and meticulous efforts of the interpreters.
IV. Appendices
Appendix I
Collection of European national laws on blasphemy,
religious insult and incitement to religious hatred153

Summary table153

Interfering
Insults Sacrilege Inciting
with religious
to religious against an discrimination
COUNTRY Blasphemy worship and/
beliefs or object of or religious
or freedom of
doctrines worship hatred
religion
Albania x x
Andorra x x x
Armenia x
Austria x x x x 149
Azerbaijan x x
Belgium x x x
Bosnia and
x x
Herzegovina
Bulgaria x x
Croatia x x
Cyprus x x x
Czech
x x
Republic
Denmark x x x x
Estonia x x
Finland x x x x x
France x x
Georgia x
Germany x x x
Greece x x x x x
Hungary x x x
Iceland x x x

153. Non-official translation.


Blasphemy, insult and hatred

Interfering
Insults Sacrilege Inciting
with religious
to religious against an discrimination
COUNTRY Blasphemy worship and/
beliefs or object of or religious
or freedom of
doctrines worship hatred
religion
Ireland x x
Italy x x x x x
Latvia x x
Liechtenstein x x x x
Lithuania x x x
Luxembourg x x x
Malta x
Moldova x
Monaco x x x
Montenegro x x
Netherlands x x x x x
Norway x x x
Poland x x x x
Portugal x x x x
150
Romania x x
Russian
x x x x
Federation
San Marino x x x
Serbia x
Slovakia x x
Slovenia x x
Spain x x x x
Sweden x
Switzerland x x x x
The former
Yugoslav
x x
Republic of
Macedonia
Turkey x x
Ukraine x x x x
United
x x
Kingdom
Appendices

Albania

There is no specific legislation prohibiting blasphemy and/or religious insult.


However, the Criminal Code contains a specific section on Criminal acts
against freedom of religion.

Criminal Code

Article 131 Obstructing the activities of religious organisations

Ban on the activity of religious organisations, or creating obstacles for the


free exercise of their activities, is sentenced to a fine or up to three years
imprisonment.

Article 132 Ruining or damaging objects of worship

Ruining or damaging objects of worship when it has inflicted partial or total loss
of their values is punishable by a fine or up to three years imprisonment.

Article 133 Obstructing religious ceremonies

Ban on or creating obstacles to participating in religious ceremonies or freely


151
expressing religious beliefs, constitutes criminal contravention and is sentenced
to a fine or up to one years imprisonment.

Article 265 Inciting national, racial or religious hatred and conflict

Inciting national, racial or religious hatred or conflict as well as preparing, prop-


agating, or preserving with the intent of propagating, writings with that content,
is sentenced to a fine or up ten years imprisonment.

Andorra
Criminal Code (1995)

Article 122

Anyone who commits a profane, insulting or destructive act in a religious building


or during a religious ceremony shall be subject to a maximum prison sentence of
four years.

Article 301

Anyone who insults religious beliefs in public or impedes or disrupts a religious


act or ceremony shall be subject to a maximum prison sentence of six months.
Blasphemy, insult and hatred

Armenia
Criminal Code
Article 226 Inciting national, racial or religious hatred

1. Actions aimed at incitement of national, racial or religious hatred, at racial


superiority or humiliation of national dignity, are punished by a fine in the
amount of 200 to 500 minimal wages or by correctional labour for up to two
years or by imprisonment for two to three years.

2. The actions envisaged in part 1 of this Article committed: publicly or by mass


media, with violence or threat of violence; by abuse of official position; by an
organised group, are punished by imprisonment for a term of three to six years.

Austria
Criminal Code
Section 188 Disparaging of religious precepts

Whoever publicly disparages or mocks a person or a thing, respectively, being


an object of worship or a dogma, a legally permitted rite, or a legally permitted
152
institution of a church or religious society located in Austria, in a manner cap-
able of giving rise to justified annoyance, is liable to imprisonment for a term not
exceeding six months or to a fine.

Section 189 Disturbance of the practice of religion

1. Whoever forcibly or threatening with force precludes or disturbs divine serv-


ice or an act of divine service of a church or religious society located in Austria
is liable to imprisonment for a term not exceeding two years.

2. Whoever commits mischief at a place intended for a legally permitted prac-


tice of religion or on the occasion of a legally permitted public divine service or
with an object directly destined for a legally permitted divine service of a church
or religious society located in Austria in a manner capable of giving rise to jus-
tified annoyance is liable to imprisonment for a term not exceeding six months
or to a fine.

Section 283 Incitement

Whoever publicly calls upon or goads to a hostile act against a church or reli-
gious society located in Austria or against a group belonging to such a church
or religious society, a race, a people, a tribe or a state in a manner capable of
endangering public order or incites against or insults or decries in a way which
hurts the human dignity a group belonging to a race, a people, a tribe or a state
is liable to imprisonment for a term not exceeding two years.
Appendices

Azerbaijan
Constitution (1995)

Article 18 Religion and state

Religion shall be separated from the State in the Azerbaijan Republic. All reli-
gions shall be equal by law. The spread and propaganda of religions which
humiliate human dignity and contradict the principles of humanity shall be
banned. The State education system shall be of secular character.

Article 47 Freedom of thought and speech

Every Person shall have the freedom of Thought and Speech. Nobody shall be
forced to identify or refute his/her ideas and principles. Propaganda inciting
racial, ethnic or religious animosity or hostility shall be banned.

Law on Freedom of Religious Belief, No. 281, No. 16: Article 694
in Bulletin of the Supreme Council of the Azerbaijan Republic 1992
(mod. 2001)

Article 1 Freedom of religious belief


153
Everyone shall determine his attitude to religion independently and shall have
the right to practise any kind of religion alone or together with others and to
express or disseminate his belief concerning his attitude to religion.

Laying any kind of obstacles to any person in determining his attitude to reli-
gion, or in his religious beliefs, worship or participation in execution of religious
rituals and ceremonies, shall not be allowed. Propagating of religious beliefs,
religious mode of life and worship by using force or with the aim to breed strife
among people and enforcing religious beliefs shall be prohibited.

Restrictions on the exercise of freedom of religious belief may be imposed only


in such cases as are necessary for considerations of national security and public
safety and for the protection of rights and freedoms compatible with the inter-
national obligations of the Republic of Azerbaijan.

Carrying out religious propaganda by foreigners and persons without citi-


zenship shall be prohibited (inserted into Article 1 by Law No. 222-IQD of
27 December 1996: Collection of Legislation of the Republic of Azerbaijan,
1997, No. 3, Article 171).

Parents or the persons replacing them may educate their children based on
mutual consent, in accordance with their religious belief and attitude towards
religion.
Blasphemy, insult and hatred

Criminal Code (Collection of Legislation of the Republic of Azerbaijan,


2000, No. 4(II), Article 251, entered into force on 1 September 2000)
Article 167 Interference with religious rituals
An illegal interference with religious rituals shall be punishable by a fine in the
amount of 100 to 500 minimum wages, or community works for a term of 160
to 240 hours, or corrective works for a term of up to one year.

Article 283 Instigating national, racial or religious enmity


1. Actions aimed at instigating national, racial or religious enmity, at debasing
national dignity, as well as at restricting the rights of citizens or establishing their
superiority based on their national, racial or religious affiliation, if such actions
are committed in public or using mass media, shall be punishable by a fine in
the amount of 1 000 to 2 000 minimum wages, or restriction of liberty up to
three years, or imprisonment for a term of two to four years.
2. The same actions, if committed:
a. by using force or threatening to use force;
b. by a person by using his or her official position;
c. by an organised group
154
shall be punishable by imprisonment for a term of three to five years.

Belgium
Criminal Code
Article 142
Anyone who uses violence or threats either to force one or more persons to prac-
tise a religion, attend religious services, celebrate particular religious festivals,
observe particular days of rest and hence open or close their shops or work-
shops or perform or cease certain types of work, or to prevent one or more
persons from doing so, shall be subject to a prison sentence of eight days to two
months and a 26- to 200-franc fine.

Article 143
Anyone who impedes, delays or interrupts an act of worship performed in a
place of worship or a place ordinarily used for worship, or as part of a public
religious ceremony, by creating disturbance or disorder, shall be subject to a
prison sentence of eight days to three months and a 26- to 500-franc fine.

Article 144
Anyone who insults a religious object by means of actions, words, gestures or
threats, whether in a place of worship or a place ordinarily used for worship
Appendices

or during a public religious ceremony, shall be subject to a prison sentence of


15 days to six months and a 26- to 500-franc fine.

Article 145

The same penalties shall apply to anyone who insults a minister of religion, in the
exercise of his or her ministry, by means of actions, words, gestures or threats.
Assaulting a minister of religion shall carry a prison sentence of two months to
two years and a 50- to 500-franc fine.

Article 146

Should such an assault occasion bloodshed, injury or illness, the perpetrator


shall be subject to a prison sentence of six months to five years and a 100- to
1 000-franc fine.

Anti-Discrimination Act of 25 February 2003, amending the Act


of 15 February 1993 on the Establishment of a Centre
for Equal Opportunities and Combating Racism
Section 2

2.6. Harassment shall be held to be a form of discrimination where undesirable


behaviour related to the grounds for discrimination set forth in paragraph 1 155

is intended to violate a persons dignity and create an intimidating, hostile,


degrading, humiliating or offensive environment, or has the effect of doing so.

2.7. Any behaviour whereby another person is ordered to practise discrimin-


ation against a person, a group, a community or the members thereof, on one of
the grounds [set forth in paragraph 1], shall be held to be discrimination within
the meaning of this Act.

Section 6

6.1. A prison sentence of one month to one year and a 50- to 1 000-euro fine,
or one of these penalties only, shall be applicable to:
anyone who, in one of the circumstances set forth in Article 444 of the
Criminal Code, incites discrimination, hatred or violence towards a per-
son, a group, a community or the members thereof, on grounds of gender,
sexual orientation, civil status, birth, wealth, age, religious or philosoph-
ical beliefs, current or future state of health, a disability or a physical
characteristic;
anyone who, in one of the circumstances set forth in Article 444 of the
Criminal Code, advertises his or her intention to practise discrimination,
hatred or violence towards a person, a group, a community or the members
thereof, on grounds of gender, sexual orientation, civil status, birth, wealth,
Blasphemy, insult and hatred

age, religious or philosophical beliefs, current or future state of health, a


disability or a physical characteristic.

Bosnia and Herzegovina


Criminal Code of the Federation of Bosnia and Herzegovina (1998)
Article 150
1. Whoever publicly incites or fans national, racial or religious hatred or discord or
hostility between constitutional nations and others living in Bosnia and Herzegovina
or the Federation, shall be punished by a sentence of imprisonment for a term
between one year and five years.
2. If an act referred to in paragraph 1 of this article has been committed by
coercion, molestation, jeopardising safety, exposing to derision of national,
ethnic or religious symbols, damaging belongings of another, or desecrat-
ing monuments or graves, the perpetrator shall be punished by a sentence of
imprisonment for a term between one and eight years.
3. Whoever commits an act referred to in paragraphs 1 and 2 of this article
abusing his/her position or authority, or if disorder, violence or other grave con-
sequences for the living together of constitutional nations and others living in
156
Bosnia and Herzegovina or the Federation resulted from these acts, shall be pun-
ished for the act referred to in paragraph 1 by imprisonment for a term between
one and eight years and for the act referred to in paragraph 2 by imprisonment
for a term of between one and ten years.

Article 356
1. Whoever disturbs or prevents performance of religious ceremonies shall be
fined or punished by imprisonment for a term not exceeding one year.
2. Whoever commits an offence from paragraph 1 of this article by the use of
force, or serious threat of using force, shall be punished by imprisonment of
three months up to three years.

Criminal Code of the Republika Srpska, Article 390: Inciting National,


Racial or Religious Hatred, Discord or Hostility
1. Whoever incites and inflames national, racial or religious hatred, discord or
hostility, or spreads ideas of superiority of one race or nation over another, shall
be punished by a fine or imprisonment for a term not exceeding two years.
2. Whoever commits the offence referred to in paragraph 1 of this article by
employing coercion or abuse, endangering safety, exposing national, ethnic or
religious symbols to derision, damaging other peoples belongings, or desecrat-
ing monuments or graves, shall be punished by imprisonment for a term between
six months and five years.
Appendices

3. If the offence referred to in paragraphs 1 and 2 of this article resulted in


riots, violence or any other serious consequence to the communal life of the
constituent peoples and others who live in Republika Srpska, the perpetrator
shall be punished by imprisonment for a term between one and eight years.

4. Materials and items containing messages referred to in paragraph 1 of this


article and equipment for their production, duplication or distribution shall be
forfeited.

Criminal Code of Brcko District, Article 160: Inducing National, Racial


or Religious Hatred, Discord or Hostility
1. A person who publicly incites or fans national, racial or religious hatred, dis-
cord or hostility between constitutional nations and other residents of the Brcko
District, shall be sentenced to prison from one to five years.

2. If the criminal offence referred to in paragraph 1 of this article has been commit-
ted by coercion, molestation, jeopardising safety, exposing to derision of national,
ethnic or religious symbols, damaging belongings of another, or desecrating monu-
ments, memorials or graves, the perpetrator shall be sentenced to prison from one
to eight years.

3. A person who commits the criminal offence referred to in paragraph 1 of this


Code through the abuse of his position or authority, or if these offences resulted 157

in disorder, violence, or other grave consequences for the communal life of con-
stitutional nations and others living in the Brcko District, shall be sentenced to
prison from one to ten years.

Bulgaria
Criminal Code
Article 162 Crimes against national and racial equality

1. Whoever propagates or incites racial or national hostility or hatred or racial


discrimination shall be punished by imprisonment of up to three years and by
public reprobation.

2. Whoever applies violence against another or damages his property because


of his nationality, race, religion or his political conviction shall be punished by
imprisonment of up to three years and by public reprobation.

3. Whoever forms or heads an organisation or a group whose goal is the per-


petration of an act under the preceding paragraphs shall be punished by impris-
onment of one to six years and by public reprobation.

4. A member of such an organisation or a group shall be punished by imprison-


ment of up to three years and by public reprobation.
Blasphemy, insult and hatred

5. (New, SG28/82) The court can also rule on a mandatory settlement for
crimes under the preceding paragraphs.

Article 164 Crimes against religious denominations


Whoever propagates hatred on a religious basis by speech, through the press,
by action or in another way, shall be punished by loss of liberty for up to three
years or by corrective labour.

Article 165 Crimes against religious denominations


(1) Whoever, by force or threat, hinders citizens from professing their faith or
carrying out their rituals and services that do not violate the laws of the country,
the public peace and good morals shall be punished by imprisonment of up to
one year.
1. The same punishment shall be imposed on those who, in the same way,
compel another to participate in religious rituals and services.
2. For acts under Article 163 committed against groups, individual citizens
or their property in connection with their religious affiliation, the punish-
ments stipulated by that article shall apply.

Article 166 Crimes against religious denominations


158
(Suppl. SG28/82; Amend. SG92/02, Amend. SG103/04) Whoever forms a
political organisation on religious grounds or, through speeches, publications,
acts or in any other way, uses a church or religion for propaganda against the
authorities or their activities shall be punished by imprisonment of up to three
years, unless liable to a more serious punishment.

Religious Denominations Act (1949)


Article 4
1. Every Bulgarian citizen has the right to freely practise his or her religion
through words, prints, or images, either individually or with others.
2. The right to practise a religion shall not be restricted by the state unless it is:
a. directed against national security, public order, national health, ethics,
or rights and freedoms of other citizens;
b. used for political ends;
c. used for the incitement of racial, ethic or religious hatred and hostility.

Article 15.1
The status of religious organisation may be granted when the faith and liturgical
practice on the basis of which the religious institution has been founded are not
directed against national security, public order, national health, ethics, the rights
and freedoms of other citizens or the achievement of political goals, nor at incit-
ing racial, ethnic or religious hatred and hostility.
Appendices

Article 38.1
The status of religious institution may be withdrawn: when the public practice of
religion performed by the institution is directed against national security, public
order, national health, ethics, rights and freedoms of other citizens, or when the
institution uses the faith or its liturgical and ritual practice for political goals, or
for the incitement of racial, ethnic or religious hatred and hostility.

Croatia
Constitution (as amended on 28 March 2001)
Article 39
Any call for or incitement to war, or resort to violence, national, racial, or reli-
gious hatred, or any form of intolerance is prohibited and punishable.

Criminal Code (as amended on 1 October 2004)


Article 174
Anyone who publicly speaks and expresses ideas of supremacy of one race
over another, of one ethnic or religious group over another, of one gender over
another, of one nation over another or one skin colour over another, with the aim
of inciting racial, religious, gender, national, ethnic hatred or hatred based on
159
skin colour, or with the aim of belittling, shall be punished by a term of imprison-
ment of between three months and three years.

Cyprus
Constitution
Article 18 Freedom of thought, conscience and religion
1. Every person has the right to freedom of thought, conscience and religion.
2. All religions whose doctrines or rites are not secret are free.
3. All religions are equal before the law. Without prejudice to the competency
of the communal chambers under this Constitution, no legislative, executive or
administrative act of the Republic shall discriminate against any religious institu-
tion or religion.
4. Every person is free and has the right to profess his faith and to manifest his
religion or belief, in worship, teaching, practice or observance, either individu-
ally or collectively, in private or in public, and to change his religion or belief.
5. The use of physical or moral compulsion for the purpose of making a person
change or preventing him from changing his religion is prohibited.
6. Freedom to manifest ones religion or belief shall be subject only to such limi-
tations as are prescribed by law and are necessary in the interests of the security
Blasphemy, insult and hatred

of the Republic or the constitutional order or public safety or public order or pub-
lic health or public morals or for the protection of the rights and liberties guaran-
teed by this Constitution to any person.
7. Until a person attains the age of sixteen the decision as to the religion to be
professed by him shall be taken by the person having the lawful guardianship
of such person.
8. No person shall be compelled to pay any tax or duty the proceeds of which
are specially allocated in whole or in part for the purposes of a religion other
than his own.

Article 19
1. Every person has the right to freedom of speech and expression in any form.
2. This right includes freedom to hold opinions and receive and impart informa-
tion and ideas without interference by any public authority and regardless of
frontiers.
3. The exercise of the rights provided in paragraphs 1 and 2 of this article
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary only in the interests of the security of the
160
Republic or the constitutional order or public safety or public order or public
health or public morals or for the protection of the reputation or rights of oth-
ers or for preventing the disclosure of information received in confidence or for
maintaining the authority and impartiality of the judiciary.

Criminal Code
Section 47.2, cap. 154
Whoever enters into an act publicly with the intention to promote feelings of ill
will and hostility between different communities or religious groups by reason of
his racial or ethnic origin or his religion is guilty of an offence and may on con-
viction be liable to imprisonment for up to five years.

Section 51A, cap. 154


Whoever publicly in any manner and in any way procures inhabitants to
acts of violence against each other; or promotes feelings of ill will and enmity
between different classes or communities or persons in the Republic, is guilty of
misdemeanour and is liable to imprisonment for twelve months or to a fine of
1 000 pounds or both, and in case of a legal entity a fine of 3 000 pounds may
be imposed.

Sections 138 to 142 Offences relating to religion


Insult to religions (section 138),
Appendices

Disruption of religious gatherings (section 139),


Unlawful entrance to burial places (section 140),
Offending religious sentiments by words or conduct (section 141),
Publications insulting religion (section 142).

Amending Laws 11/92, 6(III)/95 and 28(III/99) amending the law


ratifying the International Convention on the Elimination of All Forms
of Racial Discrimination
These laws establish that it is a criminal offence:
To incite acts which are likely to cause discrimination, hatred or violence
against any person or group of persons on account of their racial or ethnic
origin, or their religion. The offence is committed when a person incites as
above in public either orally or through the press or by means of any docu-
ment or picture or any other means. The sentence is that of imprisonment
not exceeding two years, or a fine not exceeding 1 000 pounds, or both;
To express ideas insulting to any person or group of persons by reason
of their racial or ethnic origin, or their religion. The offence is committed
when a person acts as above in public either orally or through the press or
by means of any documents or pictures or any other means. The criminal-
ity is that of imprisonment not exceeding one year, or a fine not exceeding
500 pounds, or both. 161

In conformity with a recommendation of the Committee for the Elimination of


Racial Discrimination, the 1999 amendments mean that it is no longer necessary
that the incitement to racial hatred be intentional for the corresponding offence
to be committed.

Czech Republic
Criminal Code
Paragraph 198 Vilification of a nation, race or belief
1. A person who publicly defames: any nation, its language or any race, or a
group of inhabitants for their political conviction, religion or lack of religious
faith, shall be punished by imprisonment for a term of up to one year.
2. A person who commits a crime stated in section 1 together with at least two
more persons shall be sentenced to imprisonment for a term of up to three years.

Paragraph 198a Incitement to national or racial hatred


1. Whoever publicly incites hatred of another nation or race or calls for restric-
tion of the rights and freedoms of other nationals or their members, shall be sen-
tenced to imprisonment for a term of up to two years.
Blasphemy, insult and hatred

2. The same sentence shall apply to a person who aids and abets an offender
to commit an act mentioned in subsection 1.

Paragraph 260 Support or propagation of a movement aiming


to suppress the rights and freedoms of citizens
1. A person who supports or propagates a movement demonstrably aiming
at oppressing the rights and freedoms of citizens, or which declares national,
racial, class or religious hatred, shall be punished by a custodial sentence from
one up to five years.
2. A person shall be punished by custodial sentence up to three years in the fol-
lowing cases:
a. if he/she commits the act stated in section1 by means of press, film,
radio, television or by similar efficient means,
b. if he/she commits such act as a member of an organised group, or if
he/she commits such act during military preparedness of the state.

Paragraph 261
Whoever publicly shows sympathy for fascism or other similar movements stated
in paragraph 260, shall be punished by a custodial sentence from six months
162 up to three years.

Statute No. 40/1995


An advertisement must not contain material that would be in conflict with moral-
ity, especially elements insulting national or religious feeling, menacing morality
in general or propagating violence. It must not contain elements belittling human
dignity or use a motive of fear.

Denmark
Criminal Code (Consolidated Act No. 1000 of 10 May 2006
entry into force, 1 July 2006)
Paragraph 140
Any person who, in public, mocks or scorns the religious doctrines or acts of
worship of any lawfully existing religious community in this country shall be lia-
ble to imprisonment for any term not exceeding four months.

Paragraph 266.b
1. Any person who, publicly or with the intention of wider dissemination, makes
a statement or imparts other information by which a group of people are threat-
ened, scorned or degraded on account of their race, colour, national or ethnic
origin, religion, or sexual inclination shall be liable to a fine or to imprisonment
Appendices

for any term not exceeding two years. It shall be considered an aggravating cir-
cumstance if the conduct can be characterised as propaganda.
2. This provision was inserted in the Criminal Code in 1971 in connection with
Denmarks ratification of the International Convention on the Elimination of All
Forms of Racial Discrimination, to ensure full compliance with Article 4 of that
convention.

Estonia
Constitution
Article 12
The incitement of national, racial, religious or political hatred, violence or dis-
crimination shall be prohibited and punishable by law. The incitement of hatred,
violence or discrimination between social strata shall equally be prohibited and
punishable by law.

Criminal Code (2000)


Paragraph 151
Any person who incites others to hatred or violence on the basis of nationality,
race, colour, sex, language, origin, religion, political opinion, financial or social
163
status: up to three years imprisonment.

Paragraph 154
A person who interferes with the religious affiliation or religious practices of a
person, unless the religious affiliation or practices are detrimental to the morals,
rights or health of other people or violate public order, shall be punished by a
fine or up to one year of imprisonment.

Paragraph 201
Violation of public order or attacks against a person or his or her rights in course
of exercise of ones religion, by
1. Forming or leading a group whose activities in the course of proclama-
tion of religious doctrine or a religious ceremony are related to violation of
public order, damaging the health of persons or other attacks on the life or
rights of persons, or inducing a person to refuse to perform his or her civil
duties, is punishable by a fine or detention or up to five years imprisonment.
2. Active participation in the activities of a group specified in subsection 1 of
this section, or promotion of the commission of acts prescribed by the religious
doctrines or ceremonies of such grouping, is punishable by a fine or detention
or up to three years imprisonment. (Law of 19 May 1993 entered into force
27 June 1993 RT I 1993, 33, 539)
Blasphemy, insult and hatred

Finland
Criminal Code of Finland as amended by Law 563/1998
Section 10 Breach of the sanctity of religion
A person who
1. publicly blasphemes against God or, for the purpose of offending, pub-
licly defames or desecrates what is otherwise held to be sacred by a church
or religious community, as referred to in the Act on the Freedom of Religion
(267/1998), or
2. by making noise, acting threateningly or otherwise, disturbs worship, ecclesi-
astical proceedings, other similar religious proceedings or a funeral,
shall be sentenced for a breach of the sanctity of religion to a fine or to impris-
onment for at most six months.

Section 11 Prevention of worship


1. A person who employs or threatens violence, so as to unlawfully prevent wor-
ship, ecclesiastical proceedings or other similar religious proceedings arranged
by a church of religious community, as referred to in the Act on the Sanctity of
164
Religion, shall be sentenced for prevention of worship to a fine or to imprison-
ment for at most two years.
2. An attempt to employ or threaten violence as in paragraph 1 is also punishable.

Section 8 of Chapter 11
Covers ethnic agitation and criminalises the spreading of statements or other
information among the public where a certain race, a national, ethnic or reli-
gious group or a comparable group is threatened, defamed or insulted.

France
Freedom of the Press Act of 29 July 1881
Section 23154
Anyone who, through utterances, slogans or threats in public places or meet-
ings, or by way of written or printed material, drawings, engravings, paintings,
emblems, images or any other medium of the written or spoken word or image
sold or distributed, presented for sale or displayed in public places or meetings,
or by means of placards or posters exposed to public view, or by any means of
audiovisual communication, directly incites the perpetrator(s) to commit the said
offence, where that incitement is acted upon, shall be punished as an accessory

154. Section 23 as amended by Act No. 72-546 of 1 July 1972, Official Gazette of 2 July 1972,
and Act No. 85-1317 of 13 December 1985, Section 18-i, Official Gazette of 24 December 1985.
Appendices

to an indictable offence. This provision shall also apply where such incitement
gives rise only to an attempted indictable offence under Article 2 of the Crimi-
nal Code.

Section 24
A five-year prison sentence and a 300 000-franc fine shall be applicable to any-
one who, by one of the means listed in the preceding section, directly incites the
commission of one of the following offences, where no action is taken on that
incitement: (...)
Anyone who, by one of the means listed in Section 23, incites discrimination,
hatred or violence towards a person or group of people on account of their
origin, or their membership or non-membership of a particular ethnic group,
nation, race or religion, shall be subject to a one-year prison sentence and a
300 000-franc fine, or one of these penalties only.
In the event of a conviction for one of the offences set forth in the preceding sub-
paragraph, the court may additionally order:
a. forfeiture of the rights set forth in Article 131-26 paragraphs 2 and 3 of
the Criminal Code for up to five years, except where the offender is found
guilty under Section 42 and Section 43.1 of the present Act or Section 93-3
paragraphs 1-3 of the Audiovisual Communication Act (No. 82-652) of
29 July 1982; 165

b. public display or dissemination of the judgment under the conditions set


forth in Article 131-35 of the Criminal Code.

Section 29.2155
Any offensive expression, contemptuous term or invective not based on fact shall
constitute an insult.

155. On 16 February 2007, the plenary Court of Cassation ruled on the meaning and scope of state-
ments reported in the press and prosecuted as constituting the offence of racial public insults, provided
for and punished under sections 29.2 and 33.3 of the Act of 29 July 1881. According to the former
provision, as updated, any offensive expression, contemptuous term or invective not based on fact
shall constitute an insult, while the latter states that insults ... against a person or group of people on
account of their origin or their membership or non-membership of a particular ethnic group, nation,
race or religion shall carry a six-month prison sentence and a fine of 22 500 euros. The trial and
appeal courts had on two occasions the Criminal Division having handed down an initial judgment
of condemnation interpreted the impugned statements (the Jews are a sect, a fraud) as being part
of a theoretical debate on the influence of religion, given that they had been made in the context of
an interview criticising religion, and held that they did not constitute an attack directed at the Jewish
community as a human community. The Court of Cassation condemned that interpretation, holding
that the statements at issue did not come within the free criticism of religion as part of a debate of
general interest, but constituted an insult against a group of people on account of their origin. In add-
ition, it analysed the statements by reference to the freedom of expression guaranteed under Article
10 of the European Convention on Human Rights, which provides that it may be subject to restrictions
under certain circumstances. In the light of the European Court of Human Rights interpretation of the
Convention, the Court of Cassation ruled that punishment of the impugned statements constituted a
necessary restriction on freedom of expression in a democratic society (Plenary Court of Cassation,
Blasphemy, insult and hatred

Section 31

The same penalty shall apply to defamation committed by the same means
against one or more ministerial staff members, a member of either House of Par-
liament, a public officer, a depositary or agent of public authority, a minister of
one of the state-funded religions or a citizen asked to perform a public service
or hold public office on a temporary or permanent basis, on account of his or
her duties or position, or against a juror or witness on account of his or her tes-
timony. Defamation concerning the private lives of such individuals is covered
by Section 32 below.

Section 32

Defamation committed against private individuals by one of the means set forth
in Section 23 shall carry a fine of 80 000 francs.

Defamation committed by the same means against a person or a group of peo-


ple on account of their origin or their membership or non-membership of a
particular ethnic group, nation, race or religion shall carry a one-year prison
sentence and a fine of 300 000 francs, or one of these penalties only.

166 In the event of a conviction for one of the offences set forth in the preceding par-
agraph, the court may additionally order: public display or dissemination of the
judgment under the conditions set forth in Article 131-35 of the Criminal Code.

Section 33

Insults delivered by the same means against the bodies or persons mentioned in
sections 30 and 31 of the present Act shall carry a fine of 80 000 francs.

Unprovoked insults committed by the same means against private individuals


shall carry a fine of 80 000 francs.

Insults delivered under the conditions set forth in the preceding paragraph
against a person or group of people on account of their origin or their member-
ship or non-membership of a particular ethnic group, nation, race or religion
shall carry a six-month prison sentence and a fine of 150 000 francs.

In the event of a conviction for one of the offences set forth in the preceding
paragraph, the court may additionally order: a) public display or dissemination
of the judgment under the conditions set forth in Article 131-35 of the Criminal
Code.

16 February 2007, No. 06-81.785, P+B+R+I, Central Consistory of the Union of Jewish Communities
of France v. Dieudonn, press release JCP G 2007, decision yet to be published).
Appendices

Act of 9 December 1905

Section 31

Anyone who causes an individual to practise or refrain from practising a reli-


gion, to belong or cease belonging to a religious association, or to contribute
or refrain from contributing to religious expenses, either by means of assault,
violence or threats or by instilling a fear of losing his or her job or putting his or
her person, family or wealth at risk, shall be subject to the fine for fifth-class sum-
mary offences and a prison sentence of six days to two months or one of these
penalties only.

Section 32

Anyone who prevents, delays or interrupts a religious service by causing disor-


der or disturbance at the premises used for such services shall be subject to the
same penalties.

Section 33

The provisions of the preceding two sections shall apply only where the nature
or circumstances of the disturbance, insults or assault in question do not attract
more severe penalties under the provisions of the Criminal Code. 167

Criminal Code

Article 132-76

In the cases provided for by law, the penalties incurred for an offence shall be
aggravated where it is committed on account of the victims actual or supposed
membership or non-membership of a particular ethnic group, nation, race or
religion.

The aggravating circumstance set forth in the first paragraph shall be estab-
lished where the offence is preceded, accompanied or followed by statements,
writings, images, objects or acts of any kind that undermine the honour or stand-
ing of the victim or of a group of people to which the victim belongs, on account
of their actual or supposed membership or non-membership of a particular eth-
nic group, nation, race or religion.

Article R. 624-3 Discriminatory defamation

Defamation committed in private against a person or a group of people


on account of their origin or their actual or supposed membership or non-
membership of a particular ethnic group, nation, race or religion shall carry the
fine for fourth-class summary offences.
Blasphemy, insult and hatred

Article R. 624-4 Discriminatory insults


Insults committed in private against a person or a group of people on account
of their origin or their actual or supposed membership or non-membership of a
particular ethnic group, nation, race or religion shall carry the fine for fourth-
class summary offences.

Article R. 625-7 (Decree No. 2005-284 of 25 March 2005)


Incitement, committed in private, to discrimination against or hatred or vio-
lence towards a person or a group of people on account of their origin or their
actual or supposed membership or non-membership of a particular ethnic group,
nation, race or religion shall carry the fine for fifth-class summary offences (a
maximum of 1 500, which may be doubled in some instances of reoffending,
together with any additional penalties).

Act No. 90-615 of 13 July 1990 punishing all racist, anti-Semitic


and xenophobic acts (Official Gazette of 14 July 1990)
Section 14
The Act allows associations working to counter racial and religious discrimina-
tion to exercise the right of reply in the audiovisual sector (amendment to Sec-
168 tion 6 of Act No. 82-652 of 29 July 1982).

Criminal Code of Alsace and Moselle


Article 166
Anyone who causes offence by making insulting public statements that blas-
pheme against God, or publicly insults one of the Christian denominations or a
religious community established within the Confederation and recognised as a
corporation, or the institutions or ceremonies of these religions, or commits an
insulting and offensive act in a church or other place used for religious assem-
blies, shall be subject to a prison sentence of up to three years.

Article 167
Anyone who uses assault or threats to prevent a person from practising the reli-
gion of a religious community established in the State ..., or who deliberately
creates disorder or disturbance in a church in order to impede or disrupt the
liturgy or certain religious ceremonies ..., shall be subject to a prison sentence
of up to three years.

Appeal No. B 05-15822 GIP (Marith Franois Girbaud) v. Croyance et


liberts
French Court of Cassation, Civil Division I, public hearing of 14 Novem-
ber 2006, judgment partly set aside without referral, Appeal No. B 05-15822,
Appendices

published in gazette: Considering that the company GIP, owner of the


Marith Franois Girbaud (MFG) clothing brand, had a poster put up from 1 to
31 March 2005 to coincide with the launch of its spring 2005 collection, cover-
ing 400 sq.m of a building faade at Porte Maillot in Neuilly-sur-Seine, consist-
ing of a photograph based on the Leonardo da Vinci painting The Last Supper,
the participants having been replaced by women wearing clothing produced by
the brand in question, in the company of a man with a bare back; that the asso-
ciation Croyances et Liberts, arguing that the advertisement was insulting to the
Catholic community, asked the urgent applications judge to prohibit the Air Paris
agency and MFG from displaying, disseminating or publishing the impugned
photograph on the grounds that it constituted an insult within the meaning of Sec-
tions 29.2 and 33.3 of the Act of 29 July 1881 and hence a manifestly unlawful
nuisance; that this association subsequently confined its submission to the pub-
lic display of the impugned photograph; that, by an order of 10 March 2005,
the Paris Regional Court, accepting the existence of the alleged insult, prohib-
ited the companies GIP and JC Decaux Publicit Lumineuse from displaying the
photograph in any public place, via any medium, ordered that it be taken down,
imposed a fine of 100 000 euros and exonerated the other defendants; that the
poster was taken down on 11 March 2005 and replaced by an image featuring
only the table used in the previous picture, without any people;

Concerning the first ground of Appeal No. B 05-15.822 lodged by GIP and of
its cross-appeal to Appeal No. W 05-16.001, which are identical: 169

Considering the complaint that the judgment rejected the application to set the
proceedings aside on grounds of nullity, even though, in deciding that GIP, on
which no writ had been served when it appeared with its director, who had per-
sonally been served with a writ, had nevertheless had sufficient time to prepare
its defence, irrespective of the conditions of its summons, on the ground that the
quality of the intervention by counsel for GIP and its director had demonstrated
that counsel was wholly conversant with the case, the Court of Appeal had
breached articles 16 and 468 of the new Code of Civil Procedure;

Considering, however, that the Court of Appeal, which noted that, in its appear-
ance before the court, GIP was assisted by a lawyer who had been notified of
the case, which the quality of his intervention had demonstrated that he was
wholly conversant with, exercised its sovereign power by holding that GIP had
had sufficient time to prepare its defence; and that it had concluded that the
grounds for ruling the application inadmissible had disappeared, given that they
had been rectified at the point when the court handed down its decision;

Whence it follows that the ground must be rejected;

Furthermore, concerning the sole ground of the contingent cross-appeal by


the association Croyances et Liberts (No. W 05-16.001): Considering the
complaint that the judgment declared the voluntary intervention by the Ligue
Blasphemy, insult and hatred

Franaise pour la Dfense des Droits de lHomme et du Citoyen admissible,


whereas:

1. in regard to offences established and punished by the Act of 29 July 1881,


the capacity to be a party to proceedings is restricted in the circumstances set
forth in sections 47, 48 and 48-1, and the only right registered associations may
exercise in respect of religious insults is that of instituting an action for damages;
by accepting the admissibility of the Ligues intervention, which was not aimed
at securing compensation for the damage caused by insults against a group of
people on account of their religion, the Court of Appeal breached Sections 48,
6 and 48-1 of the Act of 29 July 1881;

2. in regard to offences established and punished by the Act of 29 July 1881,


the capacity to be a party to proceedings is restricted in the circumstances set
forth in sections 47, 48 and 48-1, and registered associations may bring an
action in respect of religious insults only if the prosecuted offence pertains to the
types of case they are authorised to defend in the courts; given that the Ligues
stated aim was to defend cases other than those of victims of discrimination on
religious grounds, whereas the only offence being prosecuted involved insults
against a group of people on account of their religion, the Court of Appeal
breached sections 48, 6 and 48-1 of the Act of 29 July 1881;
170
3. without statutory authorisation, an association setting out to defend a collect-
ive interest abutting on the general interest does not have an interest in bring-
ing proceedings in order to assert its claims concerning an offences scope; by
accepting the intervention of the association in question solely on the basis that
the latter sought to defend the principles of freedom of expression, statutory pen-
alties and freedom of thought, the Court of Appeal breached articles 31, 330.2
and 554 of the new Code of Civil Procedure;

4. by failing to address the ground in which it was argued that the Ligues
intervention did not name the individual representing it, the Court of Appeal
breached Article 455 of the new Code of Criminal Procedure;

Considering, however, that the Court of Appeal, which noted that the Ligue
pour la Dfense des Droits de lHomme et du Citoyen, which had based its vol-
untary intervention on articles 7, 9 and 10 of the Convention for the Protection
of Human Rights and Fundamental Freedoms, sought to defend the principle
that there can be no punishment without law, and the principles of freedom of
thought and freedom of expression, rather than to assist victims of discrimin-
ation, rightly concluded that Section 48-1 of the Act of 29 July 1881 was not
applicable;

Whence it follows that the ground, the third and fourth points of which are irrele-
vant, must be rejected;
Appendices

However, concerning the second and third grounds of the appeal by GIP and
the sole ground of the appeal by the Ligue Franaise pour la Dfense des Droits
de lHomme et du Citoyen:

Having regard to Sections 29.2 and 33.3 of the Act of 29 July 1881, in con-
junction with Article 809 of the new Code of Civil Procedure and Article 10 of
the European Convention on Human Rights;

Considering that, in prohibiting the display of the impugned photograph in any


public place, via any medium, and ordering that it be taken down, the Court of
Appeal stated that the poster, the aesthetics of which were not disputed, clearly
depicted Jesus Christs Last Supper and that this founding event of Christianity,
during which Christ instituted the sacrament of the Eucharist, was undoubtedly
an essential element of the Catholic faith;

that putting the poster, in the form of a giant tarpaulin, up in a place attracting
large numbers of passers-by consequently constituted the misappropriation, on
a grand scale, of one of the main symbols of the Catholic religion for advertis-
ing and commercial purposes, such that the association Croyances et Liberts
had good cause to argue that Catholics religious beliefs and faith were ser-
iously insulted, within the meaning of sections 29.2 and 33.3 of the aforemen-
tioned Act, and that this offensive representation of a sacred theme hijacked by
a commercial advertisement thereby caused them a manifestly unlawful nuis-
171
ance, which should be put to a stop by means of the measure sought; that the
sole purpose of the said composition was to shock those who saw it in order to
draw their attention to the ludicrous misrepresentation of the Last Supper, some
of whose characters were placed in a conspicuously ambiguous posture, for the
benefit of the commercial brand inscribed above this deliberately provocative
picture;

that the artistry and aesthetics strived for in this advertising visual did not prevent
it from constituting even had it not dealt with the institution of the Eucharist a
blatant case of misappropriation of a founding act of the Christian religion, with
an element of eye-catching nudity, showing contempt for the sacred nature of
the moment depicted;

That by thereby accepting the existence of a manifestly unlawful nuisance,


whereas a mere parody of the layout of the painting The Last Supper, which was
not intended to insult the Catholic faithful or undermine their standing on account
of their faith, does not constitute an insult, that is, a direct personal attack on a
group of people on account of their religion, the Court of Appeal breached the
aforementioned texts;

Furthermore, considering that the Court of Cassation can put an end to the dis-
pute by applying the relevant legal rule; ON THESE GROUNDS:

REJECTS the contingent cross-appeal by the association Croyances et Liberts;


Blasphemy, insult and hatred

SETS ASIDE AND DECLARES VOID, except insofar as it has declared the vol-
untary intervention of the Ligue des Droits de lHomme et du Citoyen admis-
sible and rejected GIPs application to set the proceedings aside, the judgment
handed down on 8 April 2005, inter partes, by the Paris Court of Appeal;
Having regard to Article 627.2 of the new Code of Civil Procedure;
HOLDS that there are no grounds for referral;
Dismisses the application by the association Croyances et Liberts;
Awards costs against the association Croyances et Liberts;
Having regard to Article 700 of the new Code of Criminal Procedure, rejects
the applications;
States that, through the good offices of the Principal State Prosecutor at the Court
of Cassation, the present judgment will be transmitted so that it can be entered
in the margin or at the end of the partly set aside judgment;
Done and judged by the Court of Cassation, First Civil Division, and delivered
by the President in open court on 14 November 2006.

Georgia
172 Constitution (1995)
Article 9156
The state recognises the special importance of the Georgian Orthodox Church
in Georgian history but simultaneously declares complete freedom of religious
belief and confessions, as well as independence of the church from the state.

Article 19.1
1. Every individual has the right to freedom of speech, thought, conscience, reli-
gion and belief.
2. The persecution of an individual for his thoughts, beliefs or religion is prohib-
ited as is compulsion to express opinions about them.

156. Forum 18 published this report on 25 May 2005: Georgias Constitutional Court today
(25 May) ruled that mob attacks violated Pentecostal pastor Nikolai Kalutskys rights to practise
his faith freely, Forum 18 News Service has learnt. Sozar Subari, the Human Rights Ombuds-
person, is one of many who state that the mobs are instigated by local Georgian Orthodox priest
Fr David Isakadze. Subari witnessed an attack by Fr Isdakadze and told Forum 18 that a criminal
case should be launched against him. However, it will be difficult to prove that he is responsible as he
no longer turns up in person. Fr Isakadze and Archpriest Shio Menabde apparently also led a mob to
expel another Orthodox priest, Fr Levan Mekoshvili, from his parish, accusing him of being a liberal.
Elsewhere, Baptists and Pentecostals both state that Orthodox priests instigate violence against their
congregations. Until those responsible for the violence especially Fr David Isakadze are brought
to justice, the constitutional court ruling in Kalutskys case will make no difference, Baptist Bishop
Malkhaz Songulashvili told Forum 18. The Georgian Orthodox Patriarchate failed to respond to ques-
tions about its responsibility.
Appendices

3. These rights may not be restricted unless the exercise of these rights infringes
upon the rights of other individuals.

Criminal Code
Article 59 Aggravating circumstances of a crime
Aggravating circumstances of a punishment are f. Commission of a crime
with a motive of national, ethnic, racial and religious hatred or hostility.

Article 114 Premeditated murder


l. Premeditated murder is aggravated if based on racial, religious, national or
ethnic hatred.

Article 122 Premeditated severe injury to health


Is aggravated if based on racial, religious, national or ethnic hatred.

Article 131 Torture


Is aggravated if committed due to national, racial or religious intolerance.

Article 1421.1 Racial discrimination


173
That is, an act committed for the purpose of inciting to national or racial hatred
or conflict, humiliating national dignity or directly or indirectly restricting human
rights or granting advantages on grounds of race, colour, social status or
national or ethnic origin is punishable by deprivation of liberty for a term not
exceeding three years.
Under paragraph 2, certain circumstances lead the penalty to be increased,
particularly where the perpetrator uses his official authority or if the act is accom-
panied by violence or threats of violence (in both cases the penalty is a term
of imprisonment not exceeding five years) or if the offence was committed by a
group or caused a persons death (in both these cases the penalty is a term of
imprisonment of three to eight years).

Article 158 Illegal interference with the implementation


of a religious ceremony
Interference with the implementation of a religious ceremony violently or by
threat, or by abusing a believer or a representative of the church, shall be pun-
ished by a penalty equal to 50 to 100 times the daily salary, or by penal labour
for a period up to one year, or by the deprivation of liberty for a period up to
two years.
The same action committed by the use of a weapon shall be punished by a pen-
alty from 100 to 250 times the daily salary, or by the deprivation of liberty for
Blasphemy, insult and hatred

a period of from one to five years with or without dispossession of the right to
work for a period of up to five years.

Article 169 Illegal interference with a political, public or religious union


Illegal interference with the creation or the activities of a political, public or reli-
gious union by violence or threat, or by abuse of authority, shall be punished
by a penalty equal to 50 to 100 times the daily wage, or by penal labour for a
period up to one year, or by the restriction of liberty for up to two years, or by
the deprivation of liberty for up to two years.

Germany
Criminal Code (1998)
Section 130 Agitation of the People
1. Whoever, in a manner that is capable of disturbing the public peace:
a. incites hatred against segments of the population or calls for violent or arbi-
trary measures against them; or
b. assaults the human dignity of others by insulting, maliciously maligning, or
defaming segments of the population,
174
shall be punished with imprisonment from three months to five years.
2. Whoever:
a. with respect to writings (Section 11 subsection 3), which incite hatred against
segments of the population or a national, racial or religious group, or one char-
acterised by its folk customs, which call for violent or arbitrary measures against
them, or which assault the human dignity of others by insulting, maliciously
maligning or defaming segments of the population or a previously indicated
group:
i. disseminates them;
ii. publicly displays, posts, presents, or otherwise makes them accessible;
iii. offers, gives or makes accessible to a person under eighteen years; or
iv. produces, obtains, supplies, stocks, offers, announces, commends,
or undertakes to import or export them, in order to use them or copies
obtained from them within the meaning of subparagraphs a to c, or facili-
tate such use by another; or
b. disseminates a presentation of the content indicated in paragraph 1 by radio,
shall be punished with imprisonment for not more than three years or a fine.
3. Whoever publicly or in a meeting approves of, denies or renders harmless
an act committed under the rule of National Socialism of the type indicated in
Appendices

Section 220a subsection 1, in a manner capable of disturbing the public peace,


shall be punished with imprisonment for not more than five years or a fine.
4. Whoever publicly or in a meeting, violating the dignity of the victims, approves
of the National Socialist rule by force and arbitrariness, in a manner capable of
disturbing the public peace, shall be punished with imprisonment for not more
than three years or a fine.
5. Subsection 2 shall also apply to writings (Section 11 subsection 3) with con-
tent such as is indicated in subsections 3 and 4.
6. In cases under subsection 2, also in conjunction with subsection 5, and in cases
of subsections 3 and 4, Section 86 subsection 3, shall apply correspondingly.

Section 166 Insulting of faiths, religious societies and organisations dedicated


to a philosophy of life157
1. Whoever publicly or through dissemination of writings (Section 11 sub-
section 3) insults the content of others religious faith or faith related to a philoso-
phy of life in a manner that is capable of disturbing the public peace, shall be
punished with imprisonment for not more than three years or a fine.
2. Whoever publicly or through dissemination of writings (Section 11 sub-
section 3) insults a church, other religious society, or organisation dedicated to
175
a philosophy of life located in Germany, or their institutions or customs in a man-
ner that is capable of disturbing the public peace, shall be similarly punished.

Section 167 Disturbing the practice of religion


1. Whoever:
a. intentionally and in a gross manner disturbs a religious service or an
act of a religious service of a church or other religious society located in
Germany; or

157. Interrights Bulletin 19 commented: For an insult to be punishable under this law the manner
and content of the insult must be such that an objective onlooker could reasonably apprehend that
the insult would disturb the peace of those who share the insulted belief. (Court of Appeal of Celle,
Neue Juristische Wochenschrift, 1986, p. 1275.) Moreover, to be convicted, an offender must intend
or at least be aware that his or her action constituted an offence. In applying Section 166 to a work
of art, the freedom of art as guaranteed by Article 5.3 of the Basic Law must be taken into account.
Although the Federal Constitutional Court has not issued a judgment dealing specifically with the free-
dom of art vis--vis the freedom of religious beliefs, various criminal courts have done so. For exam-
ple, in a 1981 case, the Criminal Court of Appeal of Cologne held that a caricature with words of
Maria and Josef, dealing with faecal issues and abortion, did not in all circumstances show hostility
to Christians (Neue Juristische Wochenschrift, 1982, p. 657). In a 1985 case, the Court of Appeal of
Karlsruhe ruled that a printed article that dealt sarcastically with the Last Supper did not constitute an
insult. (Neue Strafrechtszeitung, 1986, pp. 363ff.) In 1988, the Criminal Court of Bochum held that
a leaflet, even if an insult, which addressed the Vatican and fascism and included caricatures, was
not of a character to disturb the peace. In considering cases involving religious insult, German courts
most probably would not prohibit such displays so long as the viewing was limited to adults who had
been informed in advance of the nature and contents of the material.
Blasphemy, insult and hatred

b. commits insulting mischief at a place dedicated to the religious services


of such a religious society,
shall be punished with imprisonment for not more than three years or a fine.
2. Corresponding celebrations of an organisation dedicated to a philosophy of
life located in Germany shall be the equivalent of religious services.

Section 167a Disturbing a funeral service


Whoever intentionally or knowingly disturbs a funeral service shall be punished
with imprisonment for not more than three years or a fine.

Greece
Constitution
Article 14
1. Every person may express and propagate his thoughts orally, in writing and
through the press in compliance with the laws of the State.
2. The press is free. Censorship and all other preventive measures are prohibited.

176 3. The seizure of newspapers and other publications before or after circulation
is prohibited.
4. Seizure by order of the public prosecutor shall be allowed exceptionally after
circulation and in case of:
a. an offence against the Christian or any other known religion.
b. an insult against the person of the President of the Republic.
c. a publication which discloses information on the composition, equipment
and set-up of the armed forces or the fortifications of the country, or which
aims at the violent overthrow of the regime or is directed against the territor-
ial integrity of the State.
d. an obscene publication which is obviously offensive to public decency,
in the cases stipulated by law.
5. In all the cases specified under the preceding paragraph, the public pros-
ecutor must, within 24 hours from the seizure, submit the case to the judicial
council which, within the next 24 hours, must rule whether the seizure is to be
maintained or lifted; otherwise it shall be lifted ipso iure. An appeal may be
lodged with the Court of Appeals and the Supreme Civil and Criminal Court by
the publisher of the newspaper or other printed matter seized and by the public
prosecutor.
6. The manner in which full retraction shall be made in cases of inaccurate pub-
lications shall be determined by law.
Appendices

7. After at least three convictions within five years for the criminal acts defined
under paragraph 3, the court shall order the definitive ban or temporary suspen-
sion of publication of the paper and, in severe cases, shall prohibit the convicted
person from practising the profession of journalist as specified by law. The ban
or suspension of publication shall be effective as of the date the court order
becomes irrevocable.
8. Press offences shall be subject to immediate court hearing and shall be tried
as provided by law.
9. The conditions and qualifications requisite for the practice of the profession of
journalist shall be specified by law.
10. The law may specify that the means of financing newspapers and periodi-
cals should be disclosed.

Criminal Code
Article 198 Malicious blasphemy
1. Anyone who insults God in public and with malicious intent, in any way what-
soever, shall incur a prison sentence of up to two years.
2. Anyone who blasphemes in public in circumstances other than those specified
in paragraph 1, thereby showing a lack of respect towards God, shall incur a
177
prison sentence of up to three months.

Article 199 Insulting a religion


Anyone who insults the Eastern Orthodox Church or any other religion recog-
nised in Greece, in public and with injurious intent, in any way whatsoever, shall
incur a prison sentence of up to two years.

Article 200 Disrupting a religious assembly


1. Anyone who deliberately and maliciously attempts to impede or disrupt a
religious assembly recognised by the State, during a service or ceremony, shall
incur a prison sentence of up to two years.
2. The same penalty shall be applicable to anyone who engages in an unseemly
and offensive act in a church or place used for religious assemblies recognised
by the State.

Article 201 Insulting the dead


Anyone who, on his or her own initiative, either desecrates a grave in order to
remove a corpse, amputate its limbs or take away its ashes with the exception
of those persons authorised to do so or engages in an unseemly and offen-
sive act towards the dead or their graves, shall incur a prison sentence of up to
two years.
Blasphemy, insult and hatred

Law 927/1979 on punishing acts or activities aiming at racial


discrimination

This law criminalises:

a. to wilfully and publicly, either orally or by the press or by written texts or


through pictures or any other means, incite to acts or activities which may result
in discrimination, hatred or violence against individuals or groups of individuals
on the sole grounds of the latters racial or national origin or [by virtue of Arti-
cle 24 of Law 1419/1984] religion;

b. to express publicly, either orally or by the press or by written texts or through


pictures or any other means offensive ideas against any individual or group of
individuals on the grounds of the latters racial or national origin or religion.

Hungary
Criminal Code

Paragraph 174 Violence based on beliefs or origins

Subparagraph 174A
178
Whoever (a) restricts another person by violence or by threats in his freedom of
conscience [or] (b) prevents another person from freely exercising his religion by
violence or threats, commits a crime, and is punishable by imprisonment extend-
ing to three years.

Subparagraph 174B

1. The person who assaults somebody else because he belongs or is believed to


belong to a national, ethnic, racial or religious group, or coerces him with vio-
lence or menace into doing or not doing or into enduring something, commits a
felony and shall be punishable with imprisonment up to five years.

2. [lists aggravating factors, such as use of arms].

Paragraph 269 Incitement against a community

A person who incites to hatred before the general public against (a) the Hungar-
ian nation; (b) any national, ethnic, racial group or certain groups of the popu-
lation, shall be punishable for a felony offence with imprisonment up to three
years.158

158. A proposed amendment to paragraph 269, to punish racist expressions, was adopted by the
Hungarian Parliament, but judged unconstitutional by Constitutional Court in May 2004; unamended
article still valid.
Appendices

Paragraph 269B

[detailed list of symbols which are connected to ideas and events relating to the
forceful seizure and dictatorial keeping of power, and therefore represent vio-
lence, hate against certain national, ethnic, or religious groups].

Law on Misdemeanour, paragraph 150 (Article LXIX of 1999)

A fine not exceeding HUF 100 000 may be imposed on whoever causes a pub-
lic scandal on premises designated for the purposes of the ceremonies of a regis-
tered church or desecrates the object of religious worship or an object used for
conducting ceremonies on or outside the premises designated for the purposes
of ceremonies.

Iceland
General Criminal Code

Article 124

If anyone disturbs the sanctity of cemeteries or becomes guilty of indecorous


treatment of a corpse, this will be subject to fines 1) or imprisonment for up
to 6 months.* 179

The same penalty shall be applied to the indecorous treatment of objects belong-
ing to churches and to be used for ecclesiastical ceremonies.
*Act 82/1998, Article 47.

Article 125

Anyone officially ridiculing or insulting the dogmas or worship of a lawfully exist-


ing religious community in this Country shall be subject to fines or [imprisonment
for up to 3 months.] Lawsuits shall not be brought except upon the instructions
of the Public Prosecutor.*
*Act 82/1998, Article 48.

Article 233a

Anyone who does by means of ridicule, calumniation, insult, threat or otherwise


assault [a person or group of persons] on account of their nationality, colour,
[race, religion or sexual inclination]* shall be subject to fines or imprisonment
[for up to 2 years.]
*Act 135/1996, Article 2. 2. Act 82/1998, Article 126. Act 96/1973,
Article 1.
Blasphemy, insult and hatred

Ireland

Constitution

Article 40159
6.1 The State guarantees liberty for the exercise of the following rights, subject
to public order and morality:
i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import
to the common good, the State shall endeavour to ensure that organs of public
opinion, such as the radio, the press, the cinema, while preserving their rightful
liberty of expression, including criticism of Government policy, shall not be used
to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an
offence which shall be punishable in accordance with law.

Defamation Act 1961, No. 40


Penalty for printing or publishing blasphemous or obscene libel.
180
13.1 Every person who composes, prints or publishes any blasphemous or
obscene libel shall, on conviction thereof on indictment, be liable to a fine not
exceeding 500 pounds or imprisonment for a term not exceeding two years or
to both fine and imprisonment or to penal servitude for a term not exceeding
seven years.
a. In every case in which a person is convicted of composing, printing or publish-
ing a blasphemous libel, the court may make an order for the seizure and car-
rying away and detaining in safe custody, in such manner as shall be directed
in the order, of all copies of the libel in the possession of such person or of any
other person named in the order for his use, evidence upon oath having been
previously given to the satisfaction of the court that copies of the said libel are in
the possession of such other person for the use of the person convicted.

159. In Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 IR 484, the Supreme Court stated
that the implications of [the constitutional framework] for the crime of blasphemy would need to be
worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it
was to an established church and an established religion could survive in such a constitutional frame-
work . It would appear that the legislature has not adverted to the problem of adapting the com-
mon law crime of blasphemy to the circumstances of a modern state which embraces citizens of many
different religions and which guarantees freedom of conscience and a free profession and practice
of religion. The Supreme Court went on to find that [in] this state of the law, and in the absence of
any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the
offence of blasphemy consists. As the Law Reform Commission has pointed out, neither the nor the
is clear. The task of defining the crime is one for the legislature, not for the courts. In the absence of
legislation and in the present state of the law the Court could not see its way to authorising the institu-
tion of a criminal prosecution of blasphemy against the respondents.
Appendices

b. Upon the making of an order under paragraph (a) of this subsection, any
member of the Garda Sochna acting under such order may enter, if necessary
by the use of force, and search for any copies of the said libel any building,
house or other place belonging to the person convicted or to such other person
named in the order and may seize and carry away and detain in the manner
directed in such order all copies of the libel found therein.
c. If, in any such case, the conviction is quashed on appeal, any copies of the
libel seized under an order under paragraph (a) of this subsection shall be
returned free of charge to the person or persons from whom they were seized.
d. Where, in any such case, an appeal is not lodged or the conviction is con-
firmed on appeal, any copies of the libel seized under an order under para-
graph (a) of this subsection shall, on the application of a member of the Garda
Sochna to the court which made such order, be disposed of in such manner
as such court may direct.

Prohibition of Incitement to Hatred Act, 1989


An act to prohibit incitement to hatred on account of race, religion, nationality
or sexual orientation

Section 2
181
It shall be an offence for a person:
to publish or distribute written material,
to use words, behave or display written material,
i. in any place other than inside a private residence, or
ii. inside a private residence so that the words, behaviour or material are
heard or seen by persons outside the residence, or
to distribute, show or play a recording of visual images or sounds,
if the written material, words, behaviour, visual images or sounds, as the case
may be, are threatening, abusive or insulting and are intended or, having regard
to all the circumstances, are likely to stir up hatred.
In proceedings for an offence under subsection 1, if the accused person is not
shown to have intended to stir up hatred, it shall be a defence for him to prove
that he was not aware of the content of the material or recording concerned and
did not suspect, and had no reason to suspect, that the material or recording
was threatening, abusive or insulting.
In proceedings for an offence under subsection 1b, it shall be a defence for the
accused person to prove that he was inside a private residence at the relevant
time and had no reason to believe that the words, behaviour or material con-
cerned would be heard or seen by a person outside the residence, or
Blasphemy, insult and hatred

if he is not shown to have intended to stir up hatred, to prove that he did not
intend the words, behaviour or material concerned to be, and was not aware
that they might be, threatening, abusive or insulting.

The Censorship of Films Act 1923

This Act provides for the withholding of a certificate from a blasphemous film.

Italy
Criminal Code

Article 402* Insulting the State religion


Anyone who insults the State religion in public shall be subject to a prison sen-
tence of up to one year.
*Declared invalid by the Constitutional Court in its judgment No. 508 of
20 November 2000.

Article 403 Insulting the State religion by insulting individuals

182 Anyone who insults the State religion in public by offending those who profess it
shall be subject to a prison sentence of up to two years. Anyone who insults the
State religion by insulting a minister of the Catholic Church shall be subject to a
prison sentence of one to three years.

Declared invalid by the Constitutional Court in its judgment No. 168 of


18 April 2005, insofar as it provides for a prison sentence of up to two years,
or of one to three years, respectively, for insulting the Catholic religion either by
insulting those who profess it or by insulting a minister of religion, rather than a
lesser sentence in accordance with Article 406 of the same Code.

Article 404 Insulting the State religion by offending against property

Anyone who, in a place of worship, a public place or a place open to the pub-
lic, insults the State religion by offending against religious property, an object
of religion or an object clearly associated with religious practice, shall be sub-
ject to a prison sentence of one to three years. Anyone who commits such an
offence during a religious service celebrated in a private place by a minister of
the Catholic Church shall be subject to the same penalty.

The Constitutional Court declared the first paragraph invalid in its judgment
No. 329 of 1997, insofar as it provides for a prison sentence of one to three
years, rather than a lesser sentence in accordance with Article 406 of the Crimi-
nal Code.
Appendices

Article 405** Disrupting Catholic religious ceremonies

Anyone who impedes or disrupts a Catholic service, ceremony or religious prac-


tice performed with the assistance of a minister of the Catholic Church, in a
place of worship, a public place or a place open to the public, shall be subject
to a prison sentence of up to two years. Where such behaviour is coupled with
violent or threatening acts towards individuals, it shall be subject to a prison sen-
tence of one to three years.

**Article declared invalid by the Constitutional Court in its judgment No. 327
of 9 July 2002, insofar as sentences for disrupting Catholic religious services
are longer than the sentences stipulated in Article 406 of the Criminal Code for
the same acts committed against other religions.

Article 406 Offences against religions recognised by the State

Anyone who commits one of the offences established under Articles 403, 404
and 405 against a religion recognised by the State shall be punished in accord-
ance with the aforementioned articles, but the sentence shall be reduced.

Article 724 Blasphemy and insulting the dead

Anyone who blasphemes against the Divinity in public, by means of invective 183
or insults, shall be subject to an administrative fine of 100 000 to 600 000 lira.
The same penalty shall apply to anyone who publicly insults the dead.

Legislative Decree No. 122 of 26 April 1993, converted into Act No. 205
of 25 June 1993 on urgent measures in respect of racial, ethnic
and religious discrimination

Section 1 Discrimination, hatred or violence on racial, ethnic, national


or religious grounds

1. Section 3 of Act No. 654 of 13 October 1975 shall be replaced by the fol-
lowing provisions:

Section 3.1. Except where the acts in question constitute a more serious offence,
the following penalties shall apply for the purposes of implementing Article 4 of
the Convention: a) anyone who, by any means whatsoever, disseminates ideas
based on racial or ethnic superiority or hatred, or commits or incites others to
commit discriminatory acts on racial, ethnic, national or religious grounds, shall
be subject to a maximum prison sentence of three years; b) anyone who, by any
means whatsoever, commits or incites others to commit acts of violence or acts
designed to provoke violence on racist, ethnic, national or religious grounds
shall be subject to a prison sentence of six months to four years; 2. [Deleted
by the Act]; 3. Any organisation, association, movement or group whose aims
Blasphemy, insult and hatred

include inciting discrimination or violence on racial, ethnic, national or religious


grounds shall be prohibited. Anyone who participates in such an organisation,
association, movement or group, or helps it with its activities, shall be subject
solely on account of such participation or the provision of such assistance
to a prison sentence of six months to four years. Anyone who promotes or runs
such an organisation, association, movement or group shall be subject on this
account alone to a prison sentence of one to six years.

Section 3 Aggravating circumstances

Where offences carrying a sentence other than life imprisonment are committed
for reasons of ethnic, national, racial or religious discrimination or hatred, or for
the purpose of facilitating the activities of an organisation, associations, move-
ment or group pursuing these goals, the sentence shall be increased by half.

Latvia
Criminal Code (1998)

Section 78 Violation of national or racial equality and restriction


of human rights
184 For a person who commits acts knowingly directed towards instigating national
or racial hatred or enmity, or knowingly commits the restricting, directly or indi-
rectly, of economic, political or social rights of individuals or the creating, directly
or indirectly, of privileges for individuals based on their racial or national origin,
the applicable sentence is deprivation of liberty for a term not exceeding three
years or a fine not exceeding 60 times the minimum monthly wage.

For a person who commits the same acts, if they are associated with violence,
fraud or threats, or where they are committed by a group of persons, a State
official, or a responsible employee of an undertaking (company) or organisa-
tion, the applicable sentence is deprivation of liberty for a term not exceeding
10 years.

Section 150 Violation of equality rights of persons on the basis


of their attitudes towards religion

For a person who commits direct or indirect restriction of the rights of persons
or creation of whatsoever preferences for persons, on the basis of the attitudes
of such persons towards religion, excepting activities in the institutions of a reli-
gious denomination, or commits violation of religious sensibilities of persons or
incitement of hatred in connection with the attitudes of such persons towards reli-
gion or atheism, the applicable sentence is deprivation of liberty for a term not
exceeding two years, or community service, or a fine not exceeding 40 times
the minimum monthly wage.
Appendices

Section 151 Interference with religious ritual

For a person who commits intentional interference with religious rituals, if such
are not in violation of law and are not associated with violation of personal
rights, the applicable sentence is community service, or a fine not exceeding
10 times the minimum monthly wage.

Section 227 Causing danger to public safety, order and the health
of individuals while performing religious activities

For a person who acts in the organisation or leadership of a group whose activi-
ties, manifested as the preaching of religious doctrine and performing of reli-
gious rituals, are associated with causing of harm to public safety and order, to
the health of persons or to the rights and interests protected by law of a person,
or who participates in such acts, the applicable sentence is deprivation of liberty
for a term not exceeding five years or a fine not exceeding 100 times the mini-
mum monthly wage.

Liechtenstein
Criminal Code
Section 126 -Aggravated criminal damage
185
1. A person is liable to a term of imprisonment not exceeding two years or to
a fine of up to 360 days pay, if he or she has committed aggravated criminal
damage against:
1. an object, which is used for a service or worship in a church or by a reli-
gious society located on the territory;
2. a grave, any other burial place, a tombstone or a memorial to the dead,
which is in a cemetery or in a place of worship .

Section 128 Aggravated theft

1. A person will be liable to a term of imprisonment not exceeding three years,


if he or she committed theft:
1. during a fire, an inundation or in general, during a victims distress, tak-
ing advantage of the victims state of helplessness;
2. in a place of worship or of an object that is used for a service or worship
in a church or by a religious society located on the territory .

Section 188 Disparaging of religious precepts

Whoever publicly disparages or mocks a person or a thing, respectively, being


an object of worship or a dogma, a legally permitted rite, or a legally permitted
institution of a church or religious society located on the territory in a manner
Blasphemy, insult and hatred

capable of giving rise to justified annoyance is liable to imprisonment for a term


not exceeding six months or to a fine of up to 360 days pay.

Section 189 Disturbance of the practice of religion


1. Whoever forcibly or threatening with force precludes or disturbs divine serv-
ice or an act of divine service of a church or religious society located on the ter-
ritory is liable to imprisonment for a term not exceeding two years.
2. Whoever commits mischief at a place destined for a legally permitted prac-
tice of religion or on the occasion of a legally permitted public divine service or
a legally permitted act of divine service or with an object directly destined for
a legally permitted divine service of a church or religious society located on the
territory in a manner capable of giving rise to justified annoyance is liable to
imprisonment for a term not exceeding six months or to a fine of up to 360 days
pay.

Section 190 Desecration of graves


1. Whoever removes a body or any portion of human remains or the ashes of
a deceased person from a place of burial or any interment space, or whoever
has abused or has altered the body or the ashes of a deceased person or has
186 desecrated a deceased persons grave, shall be liable to a term of imprisonment
not exceeding six months or to a fine of up to 360 days pay.
2. Whoever removes any ornament from a place of burial or any interment
space or memorial of a deceased person shall be liable to a term of imprison-
ment not exceeding three months or to a fine of up to 180 days pay.

Section 191 Wilful interference in a funeral


Whoever wilfully disturbs a funeral service by making noise that causes distress
or by other unsuitable behaviour shall be liable to a term of imprisonment not
exceeding three months or to a fine of up to 180 days pay.

Section 283 Racial discrimination


I. A person shall be punished with imprisonment of up to two years if he or she:
1. publicly incites hatred or discrimination against a person or a group of
persons on the basis of race, ethnicity or religion;
2. publicly disseminates ideologies aimed at the systematic disparagement
or defamation of members of a race, ethnicity or religion;
3. organises, promotes, or participates in propaganda actions with the
same objective;
4. publicly disparages or discriminates against a person or a group of
persons on the basis of race, ethnicity or religion in a manner violating
Appendices

human dignity, by means of spoken words, writing, images, electronically


transmitted symbols, gestures, physical violence or any other means;
5. publicly denies, grossly plays down the harm or attempts to justify geno-
cide or other crimes against humanity, by means of spoken words, writing,
images, electronically transmitted symbols, gestures, physical violence or
any other means;
6. denies a service he or she provides that is meant for the general public
to a person or a group of persons on the basis of race, ethnicity or religion;
7. participates as a member in an association whose activities consist of
promoting and inciting racial discrimination.

II. A person shall be punished in the same manner, if the person


1. manufactures, imports, stores or distributes, for the purposes of further
dissemination, documents, sound or image recordings, electronically trans-
mitted symbols, depictions or other objects of this sort whose content is
racial discrimination within the meaning of paragraph I;
2. publicly recommends, exhibits, offers or presents them.

III. Paragraphs I and II do not apply if the propaganda material or the act serves
the purpose of art or science, research or education, appropriate reporting on
current events or history, or similar purposes.
187

Lithuania
Constitution
Article 25

1. Individuals shall have the right to have their own convictions and freely
express them.

2. Individuals must not be hindered from seeking, obtaining or disseminating


information or ideas.

3. Freedom to express convictions, as well as to obtain and disseminate informa-


tion, may not be restricted in any way other than as established by law, when it
is necessary for the safeguard of the health, honour and dignity, private life or
morals of a person, or for the protection of constitutional order.

4. Freedom to express convictions or impart information shall be incompatible


with criminal actions the instigation of national, racial, religious, or social
hatred, violence, or

5. discrimination, the dissemination of slander, or misinformation.

6. Citizens shall have the right to obtain any available information which con-
cerns them from State agencies in the manner established by law.
Blasphemy, insult and hatred

Article 26

1. Freedom of thought, conscience, and religion shall not be restricted.

2. Every person shall have the right to freely choose any religion or faith and,
either individually or with others, in public or in private, to manifest his or her
religion or faith in worship, observance, practice or teaching.

3. No person may coerce another person or be subject to coercion to adopt or


profess any religion or faith.

4. A persons freedom to profess and propagate his or her religion or faith


may be subject only to those limitations prescribed by law and only when such
restrictions are necessary to protect the safety of society, public order, a persons
health or morals, or the fundamental rights and freedoms of others.

5. Parents and legal guardians shall have the liberty to ensure the religious and
moral education of their children in conformity with their own convictions.

Article 27

A persons convictions, professed religion or faith may justify neither the commis-
sion of a crime nor the violation of law.
188

Article 43

1. The State shall recognise traditional Lithuanian churches and religious organi-
sations, as well as other churches and religious organisations provided that they
have a basis in society and their teaching and rituals do not contradict morality
or the law.

2. Churches and religious organisations recognised by the State shall have the
rights of legal persons.

3. Churches and religious organisations shall freely proclaim the teaching of


their faith, perform the rituals of their belief and have houses of prayer, charity
institutions and educational institutions for the training of priests of their faith.

4. Churches and religious organisations shall function freely according to their


canons and statutes.

5. The status of churches and other religious organisations in the State shall be
established by agreement or by law.

6. The teachings proclaimed by churches and other religious organisations,


other religious activities and houses of prayer may not be used for purposes
which contradict the Constitution and the law.

7. There shall not be a State religion in Lithuania.


Appendices

Criminal Code
Paragraph 170

Any person who by public statements orally, in writing or through mass media,
mocks, expresses contempt, or incites hatred or discrimination against a group
of people or an individual belonging to such group on account of their sex, sex-
ual orientation, race, nationality, language, origin, social status, religion, con-
viction or belief, shall be punished by fine or restriction of freedom, or arrest, or
imprisonment up to two years.

Any person who publicly incites violence or use of deadly physical force against
a group of people or an individual belonging to such group on account of their
sex, sexual orientation, race, nationality, language, origin, social status, reli-
gion, conviction or belief, or provides financial or other kind of material support
for such acts, shall be punished by a fine or restriction of freedom, or arrest, or
imprisonment up to three years.

Paragraph 171

Prohibition of disturbance of religious services or celebrations of state-recog-


nised religious communities or associations; this paragraph provides for punish-
ment by public works, fine, restriction of freedom or arrest.
189

Law of the Republic of Lithuania of 18 November 1997 on supplementing


the Code of Administrative Violations by articles 214.12, 214.13, abolition
of Article 214.1 and amendment of articles 224, 259.1, 320.33
This law introduced definitions of unlawful conduct related to public advocacy
of national, racial or religious discord.

Article 214.12 Production, storage or distribution of information products


that advocate national, racial or religious discord

The production or storage with a purpose of distribution, and the distribution


of, printed, visual, audio or other products that advocate national, racial or reli-
gious discord incurs a fine from 1000 to 10 000 Litas either with confiscation
of such products being produced, stored or distributed and of the means essen-
tially used for production of such products, or without confiscation of the means
of production.

Article 214.13 Establishment of an organisation that advocates national,


racial or religious discord or participation in activities of such an organisation

Establishment of an organisation that advocates national, racial or religious


discord, or participation in activities of such an organisation, incurs a fine from
3 000 to 10 000 Litas.
Blasphemy, insult and hatred

The same conduct performed by a person who had previously been punished
by an administrative fine for the offences foreseen in Part 1 of this article incurs
a fine from 10 000 to 20 000 Litas.

Luxembourg
Criminal Code
Article 144
Anyone who insults an object of religion by means of actions, words, gestures
or threats, either in a place of worship or a place ordinarily used for worship
or during the public ceremonies of the religion in question, shall be subject to a
prison sentence of 15 days to six months and a 26- to 500-franc fine.

Article 145
The same penalties shall apply to anyone who, by means of actions, words, ges-
tures or threats, insults a minister of religion in the exercise of his or her ministry.
Assaulting a minister of religion shall carry a prison sentence of two months to
two years and a 50- to 500-franc fine.

Article 454 (Act of 28 November 2006)


190
Any distinction between individuals on account of their origin, skin colour,
gender, sexual orientation, civil status, age, state of health, disability, morals,
political or philosophical opinions or trade union activities, or their actual or sup-
posed membership or non-membership of a particular ethnic group, nation, race
or religion, shall constitute discrimination.
Any distinction between legal entities or groups or communities of people on
account of their origin, skin colour, gender, sexual orientation, civil status, age,
state of health, disability, morals, political or philosophical opinions or trade
union activities of some or all of their members, or their actual or supposed mem-
bership or non-membership of a particular ethnic group, nation, race or religion,
shall also constitute discrimination.

Article 455 (Act of 19 July 1997)


The forms of discrimination covered in Article 454 and committed against an
individual, a legal entity or a group or community of people shall carry a prison
sentence of eight days to two years and a 251- to 25 000-euro fine, or one of
these penalties only, where they consist in:
1. (Act of 21 December 2007) refusing to supply or allow the use of, and/or
access to, a good;
2. (Act of 21 December 2007) refusing to supply and/or allow access to a
service;
Appendices

3. (Act of 21 December 2007) making the supply of, and/or access to, a good
or service conditional upon one of the aspects covered in Article 454, or practis-
ing any other form of discrimination in relation to the supply of a good or serv-
ice, on account of one of the aspects covered in Article 454;
4. stating in an advertisement ones intention to refuse to supply a good or serv-
ice, or to practise discrimination in supplying a good or service, on account of
one of the aspects covered in Article 454;
5. hindering the normal exercise of any kind of economic activity;
6. refusing to recruit a person, taking disciplinary action or dismissing a person;
7. (Act of 28 November 2006) making access to employment, any kind of
vocational training, working conditions or membership of or involvement in a
workers or employers organisation subject to one of the aspects covered in
Article 454 of the Criminal Code.

Article 456 (Act of 19 July 1997)


The forms of discrimination covered in Article 454 and committed against an
individual, a legal entity or a group or community of people by a depository of
public authority or a person asked to perform a public service, in the course of
his or her duties or responsibilities or in connection with them, shall carry a one-
to three-month prison sentence and a 251- to 37 500-euro fine, or one of these 191
penalties only, where they consist in:
1. denying enjoyment of a statutory right;
2. hindering the normal exercise of any kind of economic activity.

Article 457 (Act of 19 July 1997)


The provisions of Articles 455 and 456 shall not be applicable to:
1. differential treatment on account of a persons state of health, where it per-
tains to measures to prevent, or insurance cover for, the risks of mortality, bodily
injury, incapacity for work or invalidity;
2. differential treatment on account of a persons state of health or disability,
where it consists in refusing to recruit the person concerned or dismissing him or
her on the ground of his or her medically certified unfitness;
3. differential treatment on the ground of nationality in the context of recruit-
ment, where civil service laws or regulations, regulations on the exercise of
certain occupations or labour law provisions stipulate that possession of a par-
ticular nationality is a prerequisite for holding a given job or exercising a given
occupation;
4. differential treatment on the ground of nationality in the context of entry into
the country, residence or voting rights, where the laws or regulations pertaining
Blasphemy, insult and hatred

thereto stipulate that possession of a particular nationality is a prerequisite for


entry into the country, residence or voting rights;
5. [repealed] (Act of 28 November 2006).

Article 457-1 (Act of 19 July 1997)


A prison sentence of eight days to two years and a 251- to 25 000-euro fine, or
one of these penalties only, shall be imposed on:
1. anyone who, through utterances, slogans or threats in public places or meet-
ings, by way of written or printed material, drawings, engravings, paintings,
emblems, images or any other medium of the written or spoken word or image
sold or distributed, presented for sale or displayed in public places or meetings,
either by means of placards or posters exposed to public view, or by any means
of audiovisual communication, incites the acts provided for in Article 455 or
hatred or violence towards an individual, a legal entity, a group or a community
on account of one of the aspects covered in Article 454;
2. anyone belonging to an organisation whose aims or activities involve the
commission of one of the acts covered in paragraph 1 of this article;
3. anyone who prints or has printed, manufactures or has manufactured, holds,
transports or has transported, imports or has imported, exports or has exported,
192
distributes in Luxembourg, sends from Luxembourg, deposits with the post office
or another professional responsible for postal distribution in Luxembourg, or has
transit through Luxembourg, written or printed material, drawings, engravings,
paintings, posters, photographs, motion pictures, emblems, images or any other
medium of the written or spoken word or image, of a kind to incite the acts cov-
ered in Article 455, hatred or violence towards an individual, a legal entity, a
group or a community, on account of one of the aspects covered in Article 454.
In any event, the aforementioned objects shall be confiscated.

Article 457-2 (Act of 19 July 1997)


Where the offences established in Article 453 are committed on account of
deceased persons actual or supposed membership or non-membership of a par-
ticular ethnic group, nation, race or religion, they shall carry a prison sentence
of six months to three years and a 251- to 37 500-euro fine, or one of these
penalties only.

Article 457-3 (Act of 19 July 1997)


Anyone who, through utterances, slogans or threats in public places or meet-
ings, by way of written or printed material, drawings, engravings, paintings,
emblems, images or any other medium of the written or spoken word or image
sold or distributed, presented for sale or displayed in public places or meet-
ings, either by means of placards or posters exposed to public view, or by any
Appendices

means of audiovisual communication, disputes, minimises, justifies or denies the


existence of one or more crimes against humanity or war crimes as defined in
Article 6 of the Charter of the International Military Tribunal appended to the
London Agreement of 8 August 1945 and committed either by members of an
organisation declared to be criminal under Article 9 of the said Charter or by
a person found guilty of such crimes by a Luxembourg, foreign or international
court shall be subject to a prison sentence of eight days to six months and a
251- to 25 000-euro fine, or one of these penalties only.

Anyone who, by one of the means listed in the preceding paragraph, disputes,
minimises, justifies or denies the existence of one or more genocides as defined
in the Punishment of Genocide Act of 8 August 1985 and recognised by a
Luxembourg or international court or authority shall be subject to the same pen-
alties, or one of those penalties only.

Article 457-4 (Act of 19 July 1997)

In the cases provided for in Articles 455, 456, 457-1, 457-2 and 457-3, offend-
ers may also be deprived of the exercise of their rights, in accordance with
Article 24.

Malta 193

Constitution

Section 2 State religion

1) The religion of Malta is the Roman Catholic Apostolic Religion. 2) The authori-
ties of the Roman Catholic Apostolic Church have the duty and the right to teach
which principles are right and which are wrong. 3) Religious teaching of the
Roman Catholic Apostolic Faith shall be provided in all State schools as part of
compulsory education.

Criminal Code

Paragraph 82A.1

Whosoever uses any threatening, abusive or insulting words or behaviour, or


displays any written or printed material which is threatening, abusive or insult-
ing, or otherwise conducts himself in such a manner, with intent thereby to stir up
racial hatred or whereby racial hatred is likely, having regard to all the circum-
stances, to be stirred up shall, on conviction, be liable to imprisonment for a term
from six to eighteen months. Racial hatred is defined in (2) as hatred against
a group of persons in Malta defined by reference to colour, race, nationality
(including citizenship) or ethnic or national origins.
Blasphemy, insult and hatred

Press Act 1974, Article 6


Whosoever by means of the publication or distribution in Malta of printed mat-
ter, or by means of any broadcast shall threaten, insult, or expose to hatred, per-
secution or contempt, a person or group of persons because of their race, creed,
colour, nationality, sex, disability or national or ethnic origin shall be liable on
conviction to imprisonment for a term not exceeding three months and to a fine.

Moldova
Constitution (1994)
Article 31 Freedom of conscience
1. The freedom of conscience is guaranteed, and its manifestations should be in
spirit of tolerance and mutual respect.
2. The freedom of religious worship is guaranteed and religious bodies are free
to organise themselves according to their own statutes under the rule of law.
3. In their mutual relationships religious cults are forbidden to use, express or
incite to hatred or enmity.
4. Religious cults are autonomous vis--vis the State and shall enjoy the latters
support, including that aimed at providing religious assistance in the army, in
194
hospitals, prisons, homes for the elderly and orphanages.

Article 32 Freedom of opinion and expression


1. All citizens are guaranteed the freedom of opinion as well as the freedom of
publicly expressing their thoughts and opinions by way of word, image or any
other means possible.
2. The freedom of expression may not harm the honour, dignity or rights of other
people to have and express their own opinions or judgments.
3. The law shall forbid and prosecute all actions aimed at denying and slan-
dering the State or the people. Likewise shall be forbidden and prosecuted
the instigations to sedition, war, aggression, ethnic, racial or religious hatred,
the incitement to discrimination, territorial separatism, public violence or other
actions threatening constitutional order.

Criminal Code
Article 346 Actions deliberately aiming to foment national, racial
or religious discord or hatred
Deliberate actions or public statements spread by means of the mass media,
whether printed or electronic, with the aim of fomenting national, racial or reli-
gious discord or hatred, attacking national honour and dignity, restricting directly
or indirectly the rights of citizens or giving preference, directly or indirectly, to
Appendices

certain citizens on the basis of their national, racial or religious affiliation, are to
be punished by a fine of 250 days pay and/or up to three years imprisonment.

Press Law, Article 4 Freedom of expression and the limitation of publicity


1. Periodicals and press agencies can publish, according to their own discre-
tion, any kind of materials and information, except: a) materials that contain
disrespect and defamation against the state and people, urging a war of aggres-
sion, national, racial or religious hatred, inciting discrimination, territorial sepa-
ratism or public violence, as well as other manifestations that violate the present
constitutional regime.

Monaco
Criminal Code
Article 238

Anyone who insults a religious object by means of words or actions, either in a


place of worship or a place used for worship at the time or during a religious
ceremony performed elsewhere, or insults a minister of religion in the course of
his or her duties, shall be subject to a 2 400- to 75 000-franc fine and a prison
sentence of 15 days to six months.
195

Freedom of Public Expression Act No. 1.299 of 15 July 2005


(Official Gazette, 2005-07-22, No. 7713, pp. 1426-1436)
Section 16

A five-year prison sentence and the fine stipulated in Article 26.4 of the Criminal
Code, or one of these penalties only, shall be imposed on anyone who, by one
of the means listed in the preceding section, directly incites one of the following
offences, where that incitement is not acted upon:

1. intentional homicide, intentional assault causing bodily injury or sexual


assault;

2. theft, extortion or intentional destruction or damage putting people at risk;

3. acts of terrorism or attempts to justify such acts.

The same penalties shall apply to anyone who, by one of the means listed in
Section 15, incites hatred or violence towards a person or group of people on
account of their origin, their membership or non-membership of a particular eth-
nic group, nation, race or religion or their actual or supposed sexual orientation.

In the event of a conviction for one of the offences covered in the preceding
paragraph, it may additionally be ordered that the decision handed down be
displayed or disseminated at the offenders expense, whether in full, in part or
Blasphemy, insult and hatred

in the form of a press release. The victims identity may be included only with
the agreement of the latter or of his or her legal representative or beneficiaries.

Section 24
Defamation committed, by the same means, against an individual shall carry a
prison sentence of one month to one year and the fine stipulated in Article 26.3
of the Criminal Code, or one of these penalties only.
Defamation committed, by the same means, against a person or a group of peo-
ple on account of their actual or supposed membership or non-membership of
a particular ethnic group, nation, race or religion, or their actual or supposed
sexual orientation, shall carry a prison sentence of one month to one year and
the fine stipulated in Article 26.3 of the Criminal Code, or one of these penal-
ties only.
In the event of a conviction for one of the offences covered in the present section,
it may additionally be ordered, in accordance with the conditions laid down
in Section 16, that the decision handed down be displayed or disseminated,
whether in full, in part or in the form of a press release.

Section 25
196 Insults delivered, by the same means, against the bodies or persons designated
in sections 22 and 23 of the present Act shall carry a prison sentence of six days
to six months and the fine stipulated in Article 26.3 of the Criminal Code, or one
of these penalties only.
Unprovoked insults delivered in the same way against individuals shall carry a
prison sentence of six days to two months and the fine stipulated in Article 26.2
of the Criminal Code, or one of these penalties only.
Insults delivered, by the same means, against a person or group of people on
account of their origin, their actual or supposed membership or non-membership
of a particular ethnic group, nation, race or religion, or their actual or supposed
sexual orientation, shall carry a prison sentence of six days to six months and
the fine stipulated in Article 26.3 of the Criminal Code, or one of these penal-
ties only.
In the event of a conviction for one of the offences covered in the present section,
it may additionally be ordered, in accordance with the conditions laid down
in Section 16, that the decision handed down be displayed or disseminated,
whether in full, in part or in the form of a press release.

Section 43
Defamation or insults against a public officer, a depositary or agent of public
authority, a citizen asked to perform a public service or hold public office on a
temporary or permanent basis, a minister of one of the state-funded religions,
Appendices

or a witness on account of his or her testimony, shall be prosecuted only upon a


complaint lodged by the person concerned or, as appropriate, by the Minister
of State, the Archbishop, the Director of the Judiciary or the Mayor.

Section 44

Defamation or insults against an individual shall be prosecuted only upon a com-


plaint lodged by the person defamed or insulted.

However, the prosecuting authorities may automatically bring a prosecution


where a person or a group of people are defamed or insulted on account of
their origin, their membership or non-membership of a particular ethnic group,
nation, race or religion, or their actual or supposed sexual orientation.

Montenegro
Constitution
Article 43

Any incitement or encouragement of national, racial, religious and other ine-


quality, and incitement and fomenting of national, racial, religious and other
hatred or intolerance, shall be unconstitutional and punishable.
197
Criminal Code
Article 161 Infringement of freedom of confession of religion
and performance of religious rites

1. Anyone who prevents or restricts freedom of confession or performance of


religion shall be sentenced to a fine or imprisonment not exceeding two years.

2. Anyone who prevents or disturbs the performance of religious rites shall also
be sentenced to the punishment referred to in paragraph 1 of this Article.

3. Anyone who coerces others to declare their religious beliefs shall be sen-
tenced to a fine or imprisonment not exceeding one year.

4. A person acting in an official capacity who commits an act referred to in


paragraphs 1 to 3 of this Article shall be sentenced to imprisonment not exceed-
ing three years.

Article 370 Causing national, race and religious hatred, divisions


and intolerance

Anyone who causes and spreads national, religious or race hatred, divisions
or intolerance among people, national minorities or ethnic groups living in
Montenegro, shall be punished by imprisonment for a term of six months to
five years.
Blasphemy, insult and hatred

If an act under paragraph 1 of this article is done by coercion, maltreatment,


endangering of safety, exposure to mockery of national, ethic or religious sym-
bols, by damaging another persons goods, or by desecration of monuments,
memorial-tablets or tombs, the offender shall be punished by imprisonment for a
term of one to eight years.

Anyone who commits an act referred to in paragraphs 1 and 2 of this article


by abusing his/her position or authority, or if as a result of these acts riot or
violence occurs, or other severe consequences for the communal life of people,
national minorities or ethnic groups living in Montenegro, shall be punished for
an act under paragraph 1 of this article by imprisonment of one to eight years,
and for an act under paragraph 2 by imprisonment of two to ten years.

The Netherlands
Criminal Code

Article 137

Article 137c

1. Any person who verbally or by means of written or pictorial material gives


198 intentional public expression to views insulting to a group of persons on account
of their race, religion or convictions, their heterosexual or homosexual prefer-
ences or physical, mental or intellectual disability, shall be liable to a term of
imprisonment not exceeding one year or to a fine of the third category.

2. If the offence is committed by a person who acts in a professional or habitual


manner or by two or more persons who act in unison, a term of imprisonment of
not more than two years will be imposed or a fine of the fourth category.

This provision entered into force on 16 July 1934. It has not been changed
since November 2003. The renewed provision entered into force on 1 Febru-
ary 2004.

Article 137d

1. Any person who verbally or by means of written or pictorial material publicly


incites hatred against or discriminating of other persons or violence against the
person or the property of others on account of their race, religion, convictions,
sex, heterosexual or homosexual preference or physical, mental or intellectual
disability, shall be liable to a term of imprisonment not exceeding one year or to
a fine of the third category.

2. If the offence is committed by a person who acts in a professional or habitual


manner or by two or more persons who act in unison, a term of imprisonment of
not more than two years will be imposed or a fine of the fourth category.
Appendices

3. This provision entered into force on 16 July 1934. It has not been changed
since November 2003. The renewed provision entered into force on 1 Febru-
ary 2004.

Article 137e

1. Any person who for reasons other than the provision of factual information:

a. makes public an utterance which he knows or can reasonably be


expected to know is insulting to a group of persons on account of their
race, religion or convictions, heterosexual or homosexual preference, or
physical, mental or intellectual disability, or which incites hatred against or
discrimination of other persons or violence against the person or property
of others on account of their race, religion or convictions, heterosexual or
homosexual preference or physical, mental or intellectual disability;

b. distributes any object which he knows or can reasonably be expected


to know contains an utterance, or has in his possession any such object
with the intention of distributing it or making the said utterance public; shall
be liable to a term of imprisonment not exceeding six months or to a third-
category fine.
199
2. If the offence is committed by a person who acts in a professional or habitual
manner or by two or more persons who act in unison, a term of imprisonment of
not more than one year will be imposed or a fine of the fourth category.

3. If the offender commits any of the offences defined in this article in the course
of his profession within five years of a previous conviction for such an offence
having become final, he may be disqualified from pursuing that profession.

This provision entered into force on 16 July 1934. It has not been changed
since November 2003. The renewed provision entered into force on 1 Febru-
ary 2004.

Article 146

A person by whom, by creating disorder or by making noise, either a lawful


public gathering intended to profess a religion or a belief, or a lawful ceremony
for the professing of a religion or a belief, or a lawful funeral service is intention-
ally disturbed, is liable to a term of imprisonment of not more than two months
or a fine of the second category.

This provision entered into force on 1 September 1886. It has not been changed
since 1984.
Blasphemy, insult and hatred

Article 147
A term of imprisonment of not more than three months or a fine of the second
category shall be imposed upon:
1. a person who publicly, either orally or in writing or by image, offends reli-
gious sensibilities by malign blasphemies;
2. a person who ridicules a minister of religion in the lawful execution of his
duties;
3. a person who makes derogatory statements about objects used for religious
celebration at a time and place at which such celebration is lawful.

Article 147a
1. A person who disseminates, publicly displays or posts written matter or an
image containing statements that offend religious sensibilities by reason of their
malign and blasphemous nature, or who has such in stock to be disseminated,
publicly displayed or posted, is liable to a term of imprisonment of not more than
two months or a fine of the second category, where he knows or has serious
reason to suspect that the written matter or the image contains such statements.
2. The punishment in section 1 is also applicable to a person who, with like
200
knowledge or like reason to suspect, publicly utters the contents of such written
matter.
This provision entered into force on 16 July 1934. It has not been changed since
1984.

Article 429bis
A person who, in a place visible from a public road, places or fails to remove
words or images that offend religious sensibilities by reason of their malign and
blasphemous nature is liable to a term of detention of not more than one month
or a fine of the second category.
This provision entered into force on 1 December 1932. It has not been changed
since 1984.
Additional information

Fine of the 1st category 335


Fine of the 2nd category 3 350
Fine of the 3rd category 6 700
Fine of the 4th category 6 750
Fine of the 5th category 67 000
Fine of the 6th category 670 000
Source: Article 23, 4th paragraph, Penal Code
Appendices

Norway
Criminal Code

Paragraph 135a

Any person who wilfully or through gross negligence publicly utters a discrimi-
natory or hateful expression shall be liable to fines or imprisonment for a term
not exceeding three years. An expression that is uttered in such a way that it is
likely to reach a large number of persons shall be deemed equivalent to a pub-
licly uttered expression, cf. Section 7, No. 2. The use of symbols shall also be
deemed to be an expression. Any person who aids and abets such an offence
shall be liable to the same penalty.

A discriminatory or hateful expression here means threatening or insulting any-


one, or inciting hatred or persecution of or contempt for anyone because of his
or her
a. skin colour or national or ethnic origin,
b. religion or life stance, or
c. homosexuality, lifestyle or orientation.

Paragraph 138
201

Any person who causes or is accessory to causing the unlawful prevention or


interruption of a public function, public religious meeting, ecclesiastical act,
public instruction or teaching in schools, an auction or a public meeting called
for a common purpose, shall be liable to fines or imprisonment for a term not
exceeding six months.

Paragraph 142160

Any person who by word or deed publicly insults or in an offensive or injurious


manner shows contempt for any creed whose practice is permitted in the realm
or for the doctrines or worship of any religious community lawfully existing here,
or who is accessory thereto, shall be liable to fines or to detention or imprison-
ment for a term not exceeding six months.

A prosecution will only be instituted when the public interest so requires.

160. Interrights Bulletin 19 noted: However, this provision has not been applied by the courts since
1936, when an author, Arnulf verland, was acquitted under this provision. More recently, several
Muslim leaders brought a lawsuit against the Norwegian publisher of Satanic Verses, but withdrew it,
apparently in recognition of the fact that they had virtually no chance of success. Indeed, in Norway,
the abolition of Section 142 is being debated. The removal of that section from the criminal code is
suggested in a report commissioned by the Norwegian Department of Culture in 1993 entitled New
Threats against Freedom of Information in the Nordic Countries Diagnosis and Suggestions. The
Report suggests that this law implies an unacceptable encroachment on freedom of expression.
Blasphemy, insult and hatred

Poland
Constitution
Article 13 Political pluralism
Political parties and other organisations whose programmes are based upon
totalitarian methods and the modes of activity of Nazism, fascism and com-
munism, as well as those whose programmes or activities sanction racial or
national hatred, shall be forbidden.

Article 35 Identity of national and ethnic minorities


The Republic of Poland shall secure to Polish citizens belonging to national or
ethnic minorities the freedom to maintain and develop their own language, to
maintain customs and traditions and to develop their own culture. National and
ethnic minorities shall have the right to establish educational and cultural institu-
tions, and institutions designed to protect religious identity, and to participate in
the resolution of matters connected with their cultural identity.

Criminal Code (1997)


Article 194 Offences against freedom of conscience and religion
202 Whoever restricts another person from exercising the rights vested in the latter,
for the reason of this persons affiliation to a certain faith or their religious indif-
ference shall be subject to a fine, or a sentence of restriction of liberty or depri-
vation of liberty for up to two years.

Article 195
1. Whoever maliciously interferes with a the public performance of a religious
ceremony of a church or another religious association with regulated legal status
shall be subject to a fine, or a sentence of restriction of liberty or deprivation of
liberty for up to two years.
2. The same punishment shall be imposed on anyone who maliciously interferes
with a funeral, mourning ceremonies or rites.

Article 196
Anyone found guilty of offending religious feelings through public calumny of an
object or place of worship is liable to a fine, restriction of liberty or a maximum
two-year prison sentence.

Article 256 Promotion of fascism or other totalitarian system


An offence is committed by anyone who promotes a fascist or other totalitarian
system of state or who incites hatred based on national, ethnic, race or religious
differences or for reason of lack of any religious denomination.
Appendices

Subject to a fine, or the penalty of deprivation of liberty for up to two years.

Article 257 Publicly insulting group of people or an individual person by


reason of their national, ethnic or racial affiliation

An offence is committed by anyone who publicly insults a group within the popu-
lation or a particular person because of his national, ethnic, race or religious
affiliation or because of his lack of any religious denomination or for these rea-
sons breaches the personal inviolability of another individual: punishable by
imprisonment for up to three years.

Broadcasting Act of 29 December 1992


Article 18, paragraph 2, states that programmes or other broadcasts shall
respect the religious beliefs of the public and especially the Christian system of
values.

Portugal
Criminal Code (Law No.65/98 of 2 September 1998)
Article 240 Racial or religious discrimination

2. Anyone who, in a public assembly, in a writing intended to be divulged or by 203


any means of mass communication:

a. provokes acts of violence against a person or a group of persons because of


his race, colour, ethnic or national origin or religion; or

b. defames or insults a person or group of persons because of his race or ethnic


or national origin or religion, especially through the negation of war crimes or of
crimes against peace and humanity, intending to incite to racial or religious dis-
crimination or to encourage it, is punishable with imprisonment from six months
to five years.

Article 251 Slander because of religious belief

1. Anyone who publicly offends or derides a person because of his religious


belief or function, in a manner sufficient to breach the peace, is punishable with
imprisonment up to one year or a fine up to 120 days pay.

2. The same penalty applies to anyone who desecrates a place or object of cult
of religious veneration in a manner sufficient to breach the peace.

Article 252 Impeachment, perturbation or slander of an act of a cult

Anyone who publicly vilifies or derides an act of a cult or religion is punishable


with imprisonment up to one year or with a fine up to 120 days pay.
Blasphemy, insult and hatred

Romania
Constitution
Article 30

1. Freedom of expression of thoughts, opinions or beliefs and freedom of any


creation by words, in writing, in pictures, by sounds or other means of commu-
nication in public are inviolable.

2. Any defamation of the country and the nation, any instigation to a war of
aggression, to national, racial, class or religious hatred, any incitement to dis-
crimination, territorial separatism or public violence, as well as any obscene
conduct contrary to morality shall be prohibited by law.

Criminal Code
Article 246

1. The hindrance or disruption of the freedom of exercising of any religion that is


organised and functions according to the law is punished with one to six months
jail sentence or with a day-fine.

2. The same sentence is given for the deed of forcing a person by constraint to
204
participate in the religious service of any religion or to perform a religious act
connected with the exercise of a religion.

Article 247

The desecration by any means of a grave, a monument or a funerary urn of a


dead body is punished with strict jail sentence from one to five years or with
day-fines.

Law No. 489/2006 on religious freedom and the general regime


of religions in Romania
This law guarantees, in articles 1 and 2, freedom of thought, conscience and
religion, according to the Constitution and the international treaties to which
Romania is a party; it sets forth that no one can be prevented from gaining or
exercising rights recognised by the said law, nor can one be constrained, put
under surveillance or put into a state of inferiority due to ones faith or affilia-
tion to a group, religious association or religion, for exercising religious free-
dom under the conditions provided by this law. It also provides that religious
freedom includes the liberty of any person to manifest ones faith individually or
collectively, privately or in public, by religion, education, religious practices and
performance of rites, as well as the liberty of changing ones faith, and that the
freedom of displaying ones faith cannot be the object of any type of restraints
other than those provided by law which constitute necessary measures in a
Appendices

democratic society for public security, order protection, health, public morality
or protection of the rights and fundamental liberties of the human being.

Law No. 48 of 16 January 2002 for approval of Government Ordinance


No. 137/2000 regarding the prevention and punishment of every form
of discrimination

Article 19

According to this ordinance, it is a minor offence, unless the deed falls under
the sentence of the criminal law, for any conduct to be displayed in public
with a character of nationalist-chauvinist propaganda, of instigation to racial
or national hatred, or that type of behaviour with the purpose or aim of affect-
ing the dignity or creating an atmosphere that is intimidating, hostile, degrad-
ing, humiliating or outrageous, directed against a person, a group of people or
a community and connected with their affiliation to a certain race, nationality,
ethnic group, religion, social or non-favoured category or their beliefs, sex or
sexual orientation.

Emergency Ordinance No. 31 of 13 March 2002 on banning organisations


and symbols with fascist, racist or xenophobic character and banning
205
promotion of the religion of the people guilty of committing crimes
against peace and humanity

Article 1

For the prevention and control of incitement to national, racial or religious


hatred, discrimination and the perpetration of crimes against peace and human-
ity, the present ordinance regulates the banning of organisations and symbols
with fascist, racist or xenophobic character and the banning of promotion of the
religion of the people guilty of committing crimes against peace and humanity.

It allows the disseminating, selling or manufacturing (or depositing for the pur-
pose of disseminating) of the mentioned symbols, as well as their public use,
only if these are for the purpose of art, science, research or education.

Law on Radio and Television Broadcasting, 1992

Article 2

1. Prohibits broadcasts that are prejudicial to an individuals dignity, honour,


private life or public image. 2. Prohibits defamation of the country and of the
nation, instigation to a war of aggression, national, racial, class or religious
hatred, incitement to discrimination, territorial separatism, or public violence.
Blasphemy, insult and hatred

Article 39

Violations of Article 2.1 are punishable by up to five years imprisonment and


of Article 2.2 by up to seven years imprisonment.

Russian Federation

Constitution (adopted on 12 December 1993)

Article 13

5. The establishment and activities of public associations whose goals and activi-
ties are aimed at the forcible changing of the basis of the constitutional order
and at violating the integrity of the Russian Federation, at undermining its secu-
rity, at creating armed units and at instigating social, racial, national and reli-
gious strife shall be prohibited.

Article 19

2. The State guarantees the equality of human and civil rights and freedoms
regardless of sex, race, nationality, language, origin, material and official sta-
206
tus, place of residence, attitude to religion, convictions, membership of public
associations, or other circumstances. All forms of limitations of human rights on
social, racial, national, language or religious grounds shall be prohibited.

Article 29

2. Propaganda or agitation that arouses social, racial, national or religious


hatred and hostility shall be prohibited. Propaganda of social, racial, national,
religious or linguistic supremacy shall also be prohibited.

Federal Law on freedom of conscience and religious associations


(26 September 1997, as amended in 2002)

Article 3

6. Prevention of exercise of rights to freedom of conscience and faith, includ-


ing that associated with violence against the person, the intentional hurting of
feelings of citizens in connection with their attitude to religion, propaganda of
religious supremacy, the destruction of or damage to property or a threat of com-
mitting such actions shall be prohibited and prosecuted in accordance with the
Federal Law. Conducting public events or putting up texts and images that may
hurt the religious feelings of citizens close to projects of religious worship shall
be prohibited.
Appendices

Federal Law on the basic guarantees of electoral rights and right


to participate in referenda of the citizens of the Russian Federation
(12 June 2002, as amended in 2006)
Article 56 Limitations during conduct of an election campaign
and agitation on the questions of a referendum
Agitation that arouses social, racial, national or religious hostility, humiliating
national dignity, propagating exclusiveness, superiority or deficiency of citizens
on grounds of their attitude to religion, or on social, racial, national, religious or
language grounds, and also agitation during the conduct of which are propa-
gated and publicly demonstrated Nazi attributes or symbols, or attributes and
symbols that are similar to Nazi attributes and symbols to the extent where they
may be confused, shall be prohibited.

Penal Code (16 June 1996, as amended in 2006)


Article 148 Obstruction of the exercise of the right of liberty of conscience
and religious liberty
Illegal obstruction of the activity of religious organisations or of the performance
of religious rites shall be punishable by a fine of up to 200 minimum wages, or
in the amount of the wage or salary, or any other income of the convicted person
for the period of up to one year, compulsory works for a term of up to one year, 207
or arrest for a term of up to three months.

Article 239 Organisation of groups that encroach on the person


and the rights of citizens
This article penalises the setting up of a religious or voluntary association whose
activities involve violence against citizens or inducement to commit other unlaw-
ful acts, specifically those linked to the incitement of racial discord and enmity,
and the leading of such a group, taking part in its activities or propagating of
aforementioned actions.

Article 282 Arousing hatred or hostility, and humiliating human dignity


Penalises any actions directed at instigating national, racial or religious hatred,
belittling national dignity, as well as the propagation of exclusiveness, supe-
riority or deficiency of citizens because of their attitude to a religion, or their
national or racial affiliation, if such behaviour is committed in public or using
mass media.

Article 282.1 Organisation of an extremist community


This article penalises the organisation of an extremist community, that is, a group
organised to prepare or commit, on grounds of ideological, political, racial,
national or religious hatred or hostility, or on grounds of hatred or hostility to
Blasphemy, insult and hatred

any social group, such crimes, in particular, as illegal obstruction of the activ-
ity of religious organisations or of the performance of religious rites, arousing
racial, national or religious hatred or hostility (articles 148 and 282 of the Penal
Code), and penalises also the leading of such a group and taking part in it.

Code on Administrative Violations (30 December 2001, as amended


in 2006)

Article 5.26 Breach of the law on freedom of conscience, freedom of religion


and religious associations

Provides administrative responsibility (a fine) for obstruction of the exercise of


the right of freedom of conscience and religious freedom, including adoption of
religious or other beliefs or rejection of them, entry to a religious association or
secession from one; for hurting the religious feelings of citizens or desecration
of their venerated objects, signs and emblems associated with their world-view.

San Marino
Criminal Code (1974)

Article 260 Religious insult


208
Whoever desecrates the symbols or the objects of cult or worship of a religion
which is not contrary to morals or publicly mocks the acts of a cult is liable to
first-degree imprisonment.

The same penalty is applicable to attacks on the honour or prestige of a priest


in or due to the exercise of his functions.

Whoever desecrates the sacred relics of San Marino is liable to second-term


imprisonment.

Article 261 Violation of freedom of religion

Whoever by violence or threat prevents anyone from practising or promoting


their religious beliefs or from taking part in private or public cult is liable to
second-degree imprisonment.

Article 262 Interference with religious ceremonies

Whoever hinders or interferes with religious rituals, ceremonies or processions


which are being carried out with the assistance of a priest is liable to first-degree
imprisonment.

If the offence is committed by violence or threat, the penalty is increased by one


degree.
Appendices

Article 267 Blasphemy or contempt for the deceased


Whoever publicly blasphemes is liable to reprehension or a fine of days of first
degree.
Whoever publicly expresses contempt for the deceased is liable to the same pen-
alty, at the request of the close relatives.

Former Criminal Code, Article 325 (repealed in 1974)


Whoever through words or acts mocks or scorns in any manner a ceremony of
the Roman Catholic Church is liable to a term of imprisonment from one to three
months, or to a fine of 50 to 100 liras, or to a more severe penalty should the
contempt degenerate into interference foreseen in the previous article or into a
more serious offence.

Serbia
Criminal Code
Article 134
Whoever provokes or fans national, racial or religious hatred, discord or intol-
erance among the nations and national minorities living in the Federal Republic
of Yugoslavia will be punished by imprisonment of one to five years. If such an
209
offence has been committed by coercion, maltreatment, threat to safety, expo-
sure to derision of national, ethnic or religious symbols, damage to belongings
of others, or desecration of shrines, memorials and graves, the perpetrator will
be punished by a prison term of one to eight years.
Whoever commits this offence by abuse of official position or powers or if, as a
result of these offences, disorders, violence or other serious consequences have
affected the communal life of nations and national minorities living in the Federal
Republic of Yugoslavia, the perpetrator will be punished by imprisonment of one
to eight and/or one to ten years.

Slovakia
New Criminal Code (L. 300/2005)
Paragraph 423 Defamation of the nation, race and belief
1. Whoever publicly vilifies:
a. any nation, its language, any race or an ethnic group, or
b. a group of persons because of their belief or that they are without belief,
is sentenced to imprisonment of up to one year.
2. If the offender commits an act as stated in 1
a. together with two other persons at least,
Blasphemy, insult and hatred

b. in connection with a foreign power or a foreign actor,


c. as a public authority, or
d. during a crisis situation,

the offender is sentenced to imprisonment of up to three years.

Paragraph 424 Incitement to national, racial and ethnic hatred

1. Any person who publicly


a. threatens an individual or a group of individuals, because of their nation,
nationality, race or ethnic group or for the colour of their skin, with restric-
tion of their rights and freedoms, or any person who makes such a restric-
tion, or
b. incites hatred against a nation or a race, or incites the restriction of rights
and freedoms of the members of a nation or race,

shall be liable to a term of imprisonment not exceeding three years.

2. The sentence referred to in paragraph 1 shall be imposed on any person


who associates or assembles with others with a view to committing the offence
referred to in paragraph 1.
210

3. The offender shall be liable to a term of imprisonment of one year to three


years if he/she commits the offence referred to in paragraph 1 or 2
a. in association with a foreign power or foreign official/agent;
b. in the capacity as a public official, or
c. during a crisis situation.

Slovenia
Constitution
Article 63 Prohibition of incitement to discrimination or intolerance
and prohibition of incitement to violence and war

All incitement to ethnic, racial, religious or other discrimination, as well as the


inflaming of ethnic, racial, religious or other hatred or intolerance, shall be
unconstitutional.

All incitement to violence or to war shall be unconstitutional.

Religious Freedom Act (adopted on 2 February 2007), Article 3.1


All incitement to religious discrimination, inflaming of religious hatred and intol-
erance is prohibited.
Appendices

Criminal Code
Article 300 Stirring up hatred, strife or intolerance based on violation
of the principle of equality

1. Whoever provokes or stirs up ethnic, racial or religious hatred, strife or intol-


erance or disseminates ideas on the supremacy of one race over another or pro-
vides aid in any manner for racist activity or denies, diminishes the significance
of, approves of or advocates genocide, shall be punished by imprisonment of
up to two years.

2. If the offence under the preceding paragraph has been committed by coer-
cion, maltreatment, endangering of security, desecration of national, ethnic or
religious symbols, damaging of the movable property or another, desecration of
monuments or memorial stones or graves, the perpetrator shall be punished by
imprisonment of up to five years.

3. Materials and objects bearing messages from the first paragraph of this arti-
cle and all devices intended for their manufacture, multiplication and distribution
shall be confiscated or their use disabled in an appropriate manner.

Mass Media Act (entered into force on 26 May 2001)


Article 8.1 Prohibition of incitement to inequality and intolerance 211

The dissemination of programming that encourages national, racial, religious,


sexual or any other inequality or violence and war, or incites national, racial,
religious, sexual or any other hatred and intolerance shall be prohibited.

Article 47.3 Advertisements

Advertising may not:


prejudice respect for human dignity;
incite discrimination on grounds of race, sex or ethnicity, or political or reli-
gious intolerance;
encourage behaviour damaging public health or safety or protection of the
environment and cultural heritage;
give offence on the grounds of religious or political beliefs; or
damage consumers interests.

Article 74

1. All publishers of radio and television stations shall have under equal condi-
tions the right to make a short report on all important events and other events
accessible to the public, with the exception of religious ceremonies.
Blasphemy, insult and hatred

Article 129.1.1 Penalty provisions


A fine ranging from 250 000 tolars to 20 000 000 tolars for an infringement
shall be imposed upon a publisher if
through advertisements via its mass medium it harms human dignity, incites
discrimination on grounds of race, sex or ethnicity, or political or religious
intolerance, encourages behaviour endangering public health or safety or
protection of the environment and cultural heritage, gives offence on the
grounds of religious or political beliefs or damages consumers interests.

Spain
Act of 9 June 1988
This Act repealed Article 239 of the Criminal Code, which provided that: Any-
one who commits blasphemy in writing, or in public, or by means of words or
acts causing serious public offence shall be subject to a lengthy prison sentence
and a 30 000- to 50 000-peseta fine.

Criminal Code
Article 22
The following shall be considered aggravating circumstances:
212

4. Commission of an offence for reasons of racism, anti-Semitism or any other


type of discrimination based on the victims ideology, religion or belief, race,
national origin, gender, sexual orientation, illness or disability.

Article 510
1. Anyone who incites discrimination, hatred or violence towards any group or
association for reasons of racism, anti-Semitism or on any other grounds based
on ideology, religion or belief, civil status, ethnicity or race, national origin, gen-
der, sexual orientation, illness or disability shall be subject to a one- to three-year
prison sentence or a six- to twelve-month fine.
2. The same punishment shall be applicable to anyone who, knowing it to be
false or showing reckless contempt for the truth, disseminates offensive informa-
tion about groups or associations in connection with their ideology, religion or
beliefs or their members ethnicity, race, national origin, gender, sexual orienta-
tion, illness or disability.

Article 515
A penalty shall be applicable to any unlawful association, including:
Any association that promotes discrimination, hatred or violence towards other
people, groups or associations on account of their ideology or beliefs or the
ethnicity, race, nationality, gender, sexual orientation, civil status, illness or
Appendices

disability of some or all of their members; and any association that incites others
to do so.

Article 522
A four- to ten-month prison sentence shall be applicable to:
1. anyone who uses violence, intimidation, force or any other unlawful con-
straint to prevent one or more members of a religious faith from attending or
participating in acts related to the beliefs they profess;
2. anyone who uses the aforementioned means to force one or more other per-
sons to attend or participate in acts of worship or rites, to engage in acts asso-
ciated with the profession or non-profession of a religious faith or to change
religion.

Article 523
Anyone who uses violence, threats, commotion or assault to impede, interrupt or
disrupt the acts, functions, ceremonies or celebrations of the religious denomina-
tions listed in the relevant Public Register held by the Ministry of Justice and the
Interior shall be subject to a prison sentence of six months to six years, where
the offence is committed in a place of worship, or a four- to ten-month prison
sentence where it is committed elsewhere. 213

Article 524
Anyone who performs an act of profanation offensive to legally registered reli-
gious beliefs in a church or other place of worship or during a religious cere-
mony shall be subject to a prison sentence of six months to one year or a four- to
ten-month fine.

Article 525
1. Anyone who, with the intention of offending members of a religious denomi-
nation, mocks their dogmas, beliefs, rites or ceremonies in public, orally, in
writing or in any kind of document or publicly harasses those who profess or
practise their beliefs shall be subject to an eight- to twelve-month prison sentence.
2. Anyone who mocks in public, orally or in writing those who do not profess
any religion or belief shall be subject to the same penalty.

Article 526
Anyone who, lacking in respect for the memory of the dead, desecrates tombs
or graves, defiles a corpse or its ashes or, as an affront, destroys, alters or dam-
ages funeral urns, graveyards, tombstones or burial niches shall be subject to a
penalty of 12 to 24 weekends of detention and a three- to six-month fine.
Blasphemy, insult and hatred

Article 607

1. Anyone seeking the total or partial destruction of a national, ethnic, racial or


religious group, or guilty of any of the other acts listed below, shall be liable to:
i. 15 to 20 years imprisonment for murdering a member of the aforemen-
tioned group; where there are two or more aggravating circumstances, the
penalty shall be increased incrementally;
ii. 25 to 30 years imprisonment for sexually assaulting a member of the
aforementioned group or causing one of the injuries listed in Article 149;
iii. eight to 15 years imprisonment for subjecting the aforementioned group
or any of its members to living conditions that might endanger their lives
or seriously damage their health, or inflicting one of the injuries listed in
Article 150;
iv. four to eight years imprisonment for inflicting any injury other than those
mentioned in subparagraphs (ii) and (iii) of this paragraph.

2. Dissemination, by any means, of any doctrine that denies or justifies the


offences set out in the preceding paragraph of this article, or attempts to rehabil-
itate any regime or institution encouraging practices similar to those described
in the preceding paragraphs, shall carry a one- to two-year prison sentence.
214

Sweden
The general law of blasphemy was abolished in 1949 and a narrower crime of
religious insult was abolished in 1970.

Criminal Code
Chapter 29, Section 2

In assessing criminal value, the following aggravating circumstances shall be


given special consideration in addition to what is applicable to each and every
type of crime:

7. whether a motive for the crime was to aggrieve a person, ethnic group or
some other similar group of people by reason of race, colour, national or ethnic
origin, religious belief or other similar circumstance.

Chapter 16, Section 8

A person who, in a disseminated statement or communication, threatens or


expresses contempt for a national, ethnic or other such group of persons with
allusion to race, colour, national or ethnic origin, or religious belief shall be sen-
tenced for agitation against a national or ethnic group to imprisonment for two
years or, if the crime is petty, to a fine. (L 1988:835)
Appendices

Switzerland

Criminal Code

Article 261 Violation of freedom of religion and freedom of worship

Anyone who publicly and basely insults or ridicules other peoples beliefs in
matters of faith, particularly faith in God, or profanes an object of religious
veneration,

anyone who maliciously impedes the celebration of a religious rite safeguarded


by the Constitution or disrupts or publicly ridicules such a rite,

anyone who maliciously profanes a place or object used for worship or for a
religious rite safeguarded by the Constitution,

shall be subject to a prison sentence of up to six months or a fine.

Article 261A Racial discrimination

Anyone who publicly incites hatred of or discrimination against a person or a


group of people on account of their race, ethnic group or religion;
215
anyone who publicly spreads an ideology aimed at the systematic belittling or
denigration of members of a race, ethnic group or religion;

anyone who, with the same intention, organises or encourages acts of propa-
ganda or participates in such acts;

anyone who, by means of words, written material, images, actions, assault or


any other means, publicly belittles or discriminates against a person or a group
of people on account of their race, ethnic group or religion in such a way as to
violate their human dignity, or who, for the same reasons, denies, grossly mini-
mises or attempts to justify genocide or other crimes against humanity;161

anyone who refuses to supply a public service to a person or a group of people


on account of their race, ethnic group or religion;

shall be subject to a prison sentence or a fine.

This article was inserted under Section 1 of the Federal Act of 18 June 1993,
which has been in force since 1 January 1995 (RO 1994 2887 2889; FF 1992
III 265).

161. On 9 March 2007, the Lausanne District Court imposed a suspended sentence of 90 day-fines
and a 3 000-franc fine on the President of the Turkish Workers Party for denying the Armenian geno-
cide. This was the first such conviction under Article 261A.
Blasphemy, insult and hatred

The former Yugoslav Republic of Macedonia


Criminal Code (23 July 1996)
Article 319 Causing national, racial or religious hate, discord
and intolerance
1. A person who by force, mistreatment, endangering security, ridicule of
national, ethnic or religious symbols, by damaging other peoples objects, by
desecration of monuments, graves, or in some other manner causes or excites
national, racial or religious hate, discord or intolerance, shall be punished with
imprisonment of one to five years.
2. A person who commits a crime from paragraph 1 by misusing his position or
authority, or if because of these crimes, riots and violence were caused among
people, or caused large damage to property, shall be punished with imprison-
ment of one to ten years.

Article 399 Hindering a religious ceremony


A person who unlawfully hinders the performance of a religious ceremony shall
be punished with a fine, or with imprisonment of up to one year.

216 Article 417 Racial or other discrimination


1. A person who, based on the difference in race, colour of skin, national-
ity or ethnic affiliation, violates the basic human rights and freedoms acknowl-
edged by the international community, shall be punished with imprisonment of
six months to five years.
2. The punishment from paragraph 1 shall apply also to a person who perse-
cutes organisations or individuals because of their efforts for equality of the
people.
3. A person who spreads ideas about the superiority of one race above some
other, or who advocates racial hate, or instigates to racial discrimination, shall
be punished with imprisonment of six months to three years.

Law on Religious Communities and Religious Groups (Official Gazette


of the Republic of Macedonia, No. 35/1997)
Article 18
Religious activities and religious rituals are performed in churches, mosques and
other temples, as well as in yards that are part of these facilities, on cemeter-
ies and other facilities of the religious community or group. Performing religious
activities and religious rituals cited in Paragraph 1 of this article cannot disturb
public order and peace, nor the religious feelings and other freedoms and rights
of citizens who do not belong to the religious community or group.
Appendices

Article 30

A fine of the amount of 30 000 to 50 000 denars will be levied on:


any person who forces or thwarts a citizen in giving contributions intended
for religious and humanitarian aims (Article 16, paragraph 2);
any person who performs religious ritual or activities outside the facilities
from Article 18, paragraph 1;
any person who performing religious rituals or activities violates public
order and peace, or the religious feelings and other freedoms and rights of
citizens (Article 18, paragraph 2), and
any person who performs a religious ritual without request on a citizen in
his residence, on a person under age without appropriate agreement or in
hospitals, homes for old people and like institutions, contrary to the house
rules (Article 20, paragraphs 1, 2 and 3).

Turkey
Constitution
Article 24

Everyone shall have the right to freedom of conscience, faith and religious belief.
217
Prayers, rites and religious ceremonies shall be conducted freely, provided that
they do not breach the provisions of Article 14. No one may be compelled to
participate in prayers or religious ceremonies and rites, or to disclose his or her
religious faith or beliefs; no one may be reprimanded or accused on account of
his or her religious faith or beliefs.

New Criminal Code (2004-2005)


Article 125

1. A person who makes an allegation of an act or specific fact about another


persons honour, reputation, dignity or prestige shall be sentenced to imprison-
ment for a term of three months to two years or a judicial fine will be imposed.
In order to punish insults in the absence of the victim, the act should have been
witnessed by at least three persons.

2. If the act is committed by means of a voiced, written or visual message


addressing the victim, the perpetrator shall be sentenced to the penalties set out
above.

3. If the offence of defamation is committed:


a. against a public official or a person performing a public service and
the allegation is connected with his public status or the public service he
provides,
Blasphemy, insult and hatred

b. as a result of expressing, changing or trying to extend ones religious,


political, social, philosophical beliefs, thoughts and opinions, ones compli-
ance with the rules and prohibitions of ones religion,
c. by mentioning the holy values of the religion the person is a member of,
the minimum length of the sentence cannot be less than one year.
4. Where the defamation is committed explicitly, the sentence shall be increased
by one sixth; if it is committed through the press and media, the sentence shall
be increased by one third.

Criminal Code
Article 216 Inciting people to hatred, hostility and humiliation
1. Anyone who publicly incites part of the population to hatred and hostil-
ity towards another part of the population by means of discrimination based
on race, regional origin, religion or social class shall be subject to a one- to
three year prison sentence, where his or her actions clearly put the public in
direct danger.
2. Anyone who humiliates part of the population on account of social, religious,
sexual or regional differences shall be subject to a prison sentence of six months
to one year.
218
3. Openly humiliating a person on account of his or her religious values shall
carry a prison sentence of six months to one year where the offence in question
might be liable to cause social unrest.

Article 301
1. A person who publicly denigrates Turkishness, the Republic or the Grand
National Assembly of Turkey, shall be punishable by imprisonment of between
six months and three years.
2. A person who publicly denigrates the Government of the Republic of Turkey,
the judicial institutions of the State, the military or security organisations shall be
punishable by imprisonment of between six months and two years.
3. In cases where denigration of Turkishness is committed by a Turkish citizen in
another country the punishment shall be increased by one third.
4. Expressions of thought intended to criticise shall not constitute a crime.162

162. Article 301 of the Turkish Criminal Code contains provisions aimed at regulating possible restric-
tions to freedom of speech mentioned in Article 26 of the Constitution. These Article 301 provisions
are quite general, though, and leave a wide spectrum of possible interpretations. As in the Constitu-
tion, it is not religion, but Turkishness, that is used in this article as a justification for limitations on
freedom of speech. Until its reform in 2003, the Turkish criminal code contained a blasphemy para-
graph, Article 175, paragraph 3-4: Quiconque insulte Allah, lune des religions, lun des prophtes,
lune des sectes ou lun des livres sacrs, ou bien vilipende ou outrage une personne en raison de
ses croyances, du fait de sa pratique des obligations religieuses ou de son observation des interdits
Appendices

Law on Radio and Television, No. 3984 (1994), Article 4


Radio and television broadcasting shall be made, within the concept of a pub-
lic utility, in Turkish. ... In addition, public and private radio and television insti-
tutions may broadcast in various languages and dialects traditionally used by
Turkish citizens in their daily lives.
The following principles shall be observed:
b. There shall be no broadcasting that leads society to violence, terror or eth-
nic discrimination; or incites masses to hatred and antagonism based on class,
race, language or religion; or brings about feelings of hatred in society.
d. The masses shall not be accused and offended on grounds of language, race,
colour, gender, political opinion, philosophical belief, religion, sect and the like.
s. All elements of programme services shall respect the dignity of the human
being and fundamental human rights.
v. Broadcasts shall neither encourage the use of violence, nor shall they be of a
nature that provokes feelings of racist hatred.

Ukraine
Constitution
219
Article 37
The establishment and activity of political parties and public associations are
prohibited if their programme goals or actions are aimed at the liquidation
of the independence of Ukraine, change of the constitutional order by violent
means, violation of the sovereignty and territorial indivisibility of the State, the
undermining of its security, the unlawful seizure of state power, propaganda of
war and violence, the incitement of inter-ethnic, racial or religious enmity, and
encroachments on human rights and freedoms and the health of the population.
Political parties and public associations shall not have paramilitary formations.
The creation and activity of organisational structures of political parties shall not
be permitted within bodies of executive and judicial power and executive bod-
ies of local self-government, in military formations, and also in state enterprises,
educational establishments and other state institutions and organisations.

religieux ... sera puni dune peine demprisonnement de six mois un an et dune amende lourde de
5 000 25 000 livres turques. La peine est double lorsque lacte incrimin prvu dans le troisime
alina du prsent article est commis par voie de publication. In the present Turkish criminal code
there is no separate blasphemy law, though Article 125 (paragraphs b and c) prohibits violating a
persons honour because of his/her religious beliefs, way of worship etc. Summarising the above
observations, it seems that, of the three elements of Turkish identity, two of them Turkishness and
Islamic tradition may be instrumental in limiting freedom of expression. In this light, a brief survey
of the Turkish Governments recent policy on freedom of expression will cast light on the practical
implications of the ongoing identity negotiation in Turkey. See www.trykkefrihed.dk/dokumenter/
FreeSpeechTurkishTaboos2.htm/.
Blasphemy, insult and hatred

Prohibition of activity of associations of citizens is exercised only through judi-


cial procedure.

Law on the Freedom of Conscience and Religious Organisations (1991)


Article 4 Equal rights of citizens regardless of their attitude to religion
Citizens of Ukraine shall be equal before the law and shall enjoy equal rights
in all spheres of economic, political, social and cultural life regardless of their
attitude to religion. A citizens attitude to religion shall not be indicated in offi-
cial documents.
Any direct or indirect limitation of rights, any establishment of direct or indirect
preferences for citizens depending on their attitude to religion, as well as incite-
ment of enmity and hate related thereto, or the offence of citizens feelings shall
result in liability established by law.
No one may evade the performance of constitutional duties by reason of reli-
gious convictions. The substitution of one duty for another duty by reason of
convictions shall be allowed only in the cases provided for by the legislation of
Ukraine.

Criminal Code
220
Article 67 Circumstances aggravating punishment
1. For the purposes of imposing a punishment, the following circumstances shall
be deemed to be aggravating:
(1) repetition of an offence or recidivism; (2) commission of an offence by
a group of persons upon prior conspiracy (paragraph 2 or 3 of Article 28);
(3) commission of an offence based on racial, national or religious enmity and
hostility; (4) commission of an offence in connection with the discharge of offi-
cial or public duty by the victim; (5) grave consequences caused by the offence;
(6) commission of an offence against a minor, an elderly or helpless person;
(7) commission of an offence against a woman who, to the knowledge of the
culprit, was pregnant; (8) commission of an offence against a person who was
in a financial, official or other dependence on the culprit; (9) commission of an
offence through use of a minor, a person of unsound mind or mentally defective
person; (10) commission of an especially violent offence; (11) commission of
an offence by taking advantage of martial law or a state of emergency or other
extraordinary events; (12) commission of an offence by a generally dangerous
method; (13) commission of an offence by a person in a state of intoxication
resulting from the use of alcohol, narcotic or any other intoxicating substances;
2. Depending on the nature of the offence, a court may find any of the circum-
stances specified in paragraph 1 of this article, other than those defined in sub-
paragraphs 2, 6, 7, 9, 10 and 12, not to be aggravating, and should provide
the reasons for this decision in its judgment.
Appendices

3. When imposing a punishment, a court may not find any circumstances, other
than those defined in paragraph 1 of this article, to be aggravating.

4. If any of the aggravating circumstances is specified in an article of the Special


Part of this Code as an element of an offence that affects its treatment, a court
shall not take it into consideration again as an aggravating circumstance when
imposing a punishment.

Article 161 Violation of citizens equality based on their race, nationality


or religious preferences

1. Wilful actions inciting national, racial or religious enmity and hatred, humili-
ation of national honour and dignity, or the insult of citizens feelings in respect
to their religious convictions, and also any direct or indirect restriction of rights,
or granting direct or indirect privileges to citizens based on race, colour of skin,
political, religious and other convictions, sex, ethnic and social origin, property
status, place of residence, linguistic or other characteristics, shall be punishable
by a fine up to 50 tax-free minimum incomes, or correctional labour for a term
up to two years, or restraint of liberty for a term up to five years, with or without
deprivation of the right to occupy certain positions or engage in certain activities
for a term up to three years.

2. The same actions accompanied by violence, deception or threats, and also if


221
committed by an official, shall be punishable by correctional labour for a term
up to two years, or imprisonment for a term up to five years.

3. Any such actions as provided for by paragraph 1 or 2 of this article, if com-


mitted by an organised group of persons, or where they caused death of people
or other grave consequences, shall be punishable by imprisonment for a term of
two to five years.

Article 178 Damage of religious architecture or houses of worship

Damage or destruction of a religious structure or a house of worship shall be


punishable by a fine up to 300 tax-free minimum incomes, or imprisonment for
a term of one to three years.

Article 179 Illegal retention, desecration or destruction of religious sanctities

Illegal retention, desecration or destruction of religious sanctities shall be punish-


able by a fine up to 200 tax-free minimum incomes, or imprisonment for a term
up to three years.

Article 180 Preclusion of religious ceremonies

1. Illegal preclusion of religious ceremonies, where it frustrated or was likely to


frustrate a religious ceremony, shall be punishable by a fine up to 50 tax-free
Blasphemy, insult and hatred

minimum incomes, or arrest for a term up to six months, or restraint of liberty for
a term up to two years.
2. Forcing a clergyman, by violence or psychological pressure, into officiating,
shall be punishable by a fine up to 50 tax-free minimum incomes, or arrest for a
term up to six months, or restraint of liberty for a term up to two years.

Article 181 Trespass against health of persons under pretence


of preaching or ministering
1. Organising or leading a group that operates under pretence of preaching or
ministering accompanied with the impairment of peoples health or sexual dis-
sipation, shall be punishable by restraint of liberty for a term up to three years,
or imprisonment for the same term.
2. The same actions accompanied with involvement of minors in activities of the
group shall be punishable by imprisonment of three to five years.

Law of Ukraine on Mass Media, Article 3


This prohibits using mass media for rousing racial, national or religious hatred.

United Kingdom
222
Scotland (HL- Law Commission, 2003)
The last reported prosecution for blasphemy in Scotland was in 1843. Some
writers have argued that blasphemy may no longer be a crime in Scotland (see,
for example, G. Gordon, The Criminal Law of Scotland, W. Green, 2nd edition,
1978, p. 998). In any event, since Scottish law, unlike English law, requires
a personal interest in a matter before there can be any private prosecution,
and since the state is unlikely to want to prosecute for blasphemy, a prose-
cution, even if technically possible, is unlikely to occur. At present Scotland
has no special provisions to deal with religious offences that are not found in
English law. Indeed some extant English provisions, such as Section 2 of the
Ecclesiastical Courts Jurisdiction Act 1860, have no counterpart in Scotland.
However, concern over sectarianism in Scotland has led to calls for new legisla-
tion. On 20 February 2003, the Scottish Parliament passed the Criminal Justice
(Scotland) Bill, which included a section on religious prejudice, originally intro-
duced by Donald Gorrie MSP. The section reads as follows:

Criminal Justice Act of 20 February 2003


Section 59A Offences aggravated by religious prejudice
1. This section applies where it is
a. libelled in an indictment; or
b. specified in a complaint, and, in either case,
Appendices

proved that an offence has been aggravated by religious prejudice.


2. For the purposes of this section, an offence is aggravated by religious preju-
dice if
a. at the time of committing the offence, or immediately before or after
doing so, the offender evinces towards the victim (if any) of the offence mal-
ice or ill-will based on the victims membership (or presumed membership)
of a religious group, or of a social or cultural group with a perceived reli-
gious affiliation; or
b. the offence is motivated (wholly or partly) by malice and ill-will towards
members of a religious group, or a social or cultural group with a perceived
religious affiliation, based on membership of that group.
3. Where this section applies, the court must take the aggravation into account
in determining the appropriate sentence.
4. Where the sentence or decision in respect of the offence is different from that
which the court would have imposed had the offence not been aggravated by
religious prejudice, the court must state the extent of and the reasons for that
difference.
5. For the purposes of this section, evidence from a single source is sufficient to
prove that an offence is aggravated by religious prejudice.
223
6. In subsection 2a, membership in relation to a group includes association
with members of that group; and presumed means presumed by the offender.
7. In this section, religious group means a group of persons defined by refer-
ence to their
a. religious belief or lack of religious belief;
b. membership of or adherence to a church or religious organisation;
c. support for the culture and traditions of a church or religious organisa-
tion; or
d. participation in activities associated with such a culture or such traditions.

England and Wales


On 5 March 2008, the House of Lords abolished the common law crimes of
blasphemy and blasphemous libel.

Public Order Act, 1986


This Act defined racial hatred as hatred against a group of persons defined by
reference to colour, race, nationality (including citizenship) or ethnic or national
origins. By Section 18 of the 1986 Act, it is an offence for a person to use
threatening, abusive or insulting words or behaviour; it is also an offence to
display any material which is threatening, abusive or insulting if the defendant
Blasphemy, insult and hatred

does so with intent to stir up racial hatred or if in the circumstances racial hatred
is likely to be stirred up. Corresponding offences exist in relation to publishing
or distributing written material, theatrical performances, and broadcasting. The
1986 Act did not extend to incitement to religious hatred.

Racial and Religious Hatred Act, 2006

An Act to make provision about offences involving stirring up hatred against per-
sons on racial or religious grounds.

Section 29

The Racial and Religious Hatred Act 2006 inserts a new part 3A into the
1986 Public Order Act; part 3A is entitled Hatred against persons on reli-
gious grounds. Religious hatred means hatred against a group of persons
defined by reference to religious belief or lack of religious belief (s. 29A). The
primary offence (s. 29B) is to use threatening words or behaviour or to display
any written material that is threatening, if the defendant thereby intends to stir
up religious hatred. It is also an offence (s. 29C) to publish or distribute written
material which is threatening, if the defendant thereby intends to stir up religious
hatred. Offences of this kind have been created in respect of theatrical perform-
224 ances (s. 29D), broadcasting (s. 29F) etc. There is also an offence of possess-
ing inflammatory material (with a view to publication, distribution etc) which is
threatening if the defendant intends religious hatred to be stirred up thereby. An
important restriction on proceedings for these offences is that no prosecution for
these offences may be instituted except with the consent of the Attorney-General
(s. 29L1).

Paragraph 29B Use of words or behaviour or display of written material

1. A person who uses threatening words or behaviour, or displays any written


material which is threatening, is guilty of an offence if he intends thereby to stir
up religious hatred.

2. An offence under this section may be committed in a public or a private


place, except that no offence is committed where the words or behaviour are
used, or the written material is displayed, by a person inside a dwelling and are
not heard or seen except by other persons in that or another dwelling.

3. A constable may arrest without warrant anyone he reasonably suspects is


committing an offence under this section.

4. In proceedings for an offence under this section, it is a defence for the accused
to prove that he was inside a dwelling and had no reason to believe that the
words or behaviour used, or the written material displayed, would be heard or
seen by a person outside that or any other dwelling.
Appendices

5. This section does not apply to words or behaviour used, or written material
displayed, solely for the purpose of being included in a programme service.

Paragraph 29C Publishing or distributing written material

1. A person who publishes or distributes written material which is threatening is


guilty of an offence if he intends thereby to stir up religious hatred.

2. References in this part to the publication or distribution of written material are


to its publication or distribution to the public or a section of the public.

Paragraph 29D Public performance of play

1. If a public performance of a play is given which involves the use of threaten-


ing words or behaviour, any person who presents or directs the performance is
guilty of an offence if he intends thereby to stir up religious hatred.

2. This section does not apply to a performance given solely or primarily for one
or more of the following purposes a) rehearsal, b) making a recording of the
performance, or c) enabling the performance to be included in a programme
service;
225
3. But if it is proved that the performance was attended by persons other than
those directly connected with the giving of the performance or the doing in rela-
tion to it of the things mentioned in paragraph b or c, the performance shall,
unless the contrary is shown, be taken not to have been given solely or primarily
for the purpose mentioned above.

4. For the purposes of this section

a. a person shall not be treated as presenting a performance of a play by


reason only of his taking part in it as a performer,

b. a person taking part as a performer in a performance directed by


another shall be treated as a person who directed the performance if with-
out reasonable excuse he performs otherwise than in accordance with that
persons direction, and

c. a person shall be taken to have directed a performance of a play given


under his direction notwithstanding that he was not present during the per-
formance; and a person shall not be treated as aiding or abetting the com-
mission of an offence under this section by reason only of his taking part in
a performance as a performer.

5. In this section play and public performance have the same meaning as
in the Theatres Act 1968.
Blasphemy, insult and hatred

6. The following provisions of the Theatres Act 1968 apply in relation to an


offence under this section as they apply to an offence under Section 2 of that
Act:
section 9 (script as evidence of what was performed),
section 10 (power to make copies of script),
section 15 (powers of entry and inspection).

Paragraph 29E Distributing, showing or playing a recording


1. A person who distributes, or shows or plays, a recording of visual images or
sounds which are threatening is guilty of an offence if he intends thereby to stir
up religious hatred.
2. In this part recording means any record from which visual images or sounds
may, by any means, be reproduced; and references to the distribution, showing
or playing of a recording are to its distribution, showing or playing to the public
or a section of the public.
3. This section does not apply to the showing or playing of a recording solely for
the purpose of enabling the recording to be included in a programme service.

226 Paragraph 29F Broadcasting or including programme in programme service


1. If a programme involving threatening visual images or sounds is included in
a programme service, each of the persons mentioned in subsection 2 is guilty of
an offence if he intends thereby to stir up religious hatred.
2. The persons are
a. the person providing the programme service,
b. any person by whom the programme is produced or directed, and
c. any person by whom offending words or behaviour are used.

Paragraph 29G Possession of inflammatory material


1. A person who has in his possession written material which is threatening, or
a recording of visual images or sounds which are threatening, with a view to
a) in the case of written material, its being displayed, published, distributed,
or included in a programme service whether by himself or another, or b) in
the case of a recording, its being distributed, shown, played, or included in a
programme service, whether by himself or another, is guilty of an offence if he
intends religious hatred to be stirred up thereby.
2. For this purpose regard shall be had to such display, publication, distribution,
showing, playing, or inclusion in a programme service as he has, or it may be
reasonably be inferred that he has, in view.
Appendices

Paragraph 29H Powers of entry and search


1. If in England and Wales a justice of the peace is satisfied by information on
oath laid by a constable that there are reasonable grounds for suspecting that
a person has possession of written material or a recording in contravention of
Section 29G, the justice may issue a warrant under his hand authorising any
constable to enter and search the premises where it is suspected the material or
recording is situated.
2. If in Scotland a sheriff or justice of the peace is satisfied by evidence on oath
that there are reasonable grounds for suspecting that a person has possession
of written material or a recording in contravention of Section 29G, the sheriff or
justice may issue a warrant authorising any constable to enter and search the
premises where it is suspected the material or recording is situated.
3. A constable entering or searching premises in pursuance of a warrant issued
under this section may use reasonable force if necessary.
4. In this section premises means any place and, in particular, includes: a) any
vehicle, vessel, aircraft or hovercraft, b) any offshore installation as defined
in Section 12 of the Mineral Workings (Offshore Installations) Act 1971, and
c) any tent or movable structure.

Paragraph 29I Power to order forfeiture


227
1. A court by or before which a person is convicted of a) an offence under
Section 29B relating to the display of written material, or b) an offence under
sections 29C, 29E or 29G, shall order to be forfeited any written material or
recording produced to the court and shown to its satisfaction to be written mate-
rial or a recording to which the offence relates.
2. An order made under this section shall not take effect a) in the case of an
order made in proceedings in England and Wales, until the expiry of the ordi-
nary time within which an appeal may be instituted or, where an appeal is duly
instituted, until it is finally decided or abandoned; b) in the case of an order
made in proceedings in Scotland, until the expiration of the time within which,
by virtue of any statute, an appeal may be instituted or, where such an appeal
is duly instituted, until the appeal is finally decided or abandoned.
3. For the purposes of subsection 2a: a) an application for a case stated or for
leave to appeal shall be treated as the institution of an appeal, and b) where a
decision on appeal is subject to a further appeal, the appeal is not finally deter-
mined until the expiry of the ordinary time within which a further appeal may be
instituted or, where a further appeal is duly instituted, until the further appeal is
finally decided or abandoned.
4. For the purposes of subsection 2b, the lodging of an application for a stated
case or note of appeal against sentence shall be treated as the institution of an
appeal.
Blasphemy, insult and hatred

Paragraph 29J Protection of freedom of expression


Nothing in this part shall be read or given effect in a way which prohibits or
restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult
or abuse of particular religions or the beliefs or practices of their adherents, or
of any other belief system or the beliefs or practices of its adherents, or proselyt-
ising or urging adherents of a different religion or belief system to cease practis-
ing their religion or belief system.

Northern Ireland (HL-Law Commission, 2002)


Blasphemy was part of the common law of Ireland. In an 1842 judgment,
Sir Edward Sugden refers to the successful prosecution in 1703 of Thomas
Emlyn, a Unitarian minister who had written a book arguing that Jesus Christ
was not the equal of God the Father. This appears to have been the first reported
blasphemy prosecution in Irish law. The law would seem to have protected the
beliefs of the Church of Ireland. It is therefore arguable that the crime did not sur-
vive the disestablishment of the Church of Ireland by the Irish Church Act 1869.
There was no reported blasphemy prosecution in the period between 1855 and
the creation of the independent state of Ireland. In Northern Ireland, which inher-
ited Irish common law, there has, to date, been no prosecution for blasphemy.
However, in Northern Ireland incitement to religious hatred is a criminal offence
228 under the Public Order (NI) Order 1987, although it is rarely prosecuted. From
enquiries we made, it would seem that this might be due to the fact that it was
difficult to show the necessary intention to incite religious hatred, a disinclina-
tion to prosecute sectarian cases or a feeling that the number of cases that could
potentially be prosecuted was so large as to make individual prosecutions poten-
tially invidious or a combination of all three.
Appendix II
Analysis of domestic laws on blasphemy,
religious insult and inciting religious hatred in Albania,
Austria, Belgium, Denmark, France, Greece, Ireland,
Netherlands, Poland, Romania, Turkey and the United
Kingdom on the basis of replies to a questionnaire

Questionnaire
1. Is there specific legislation prohibiting blasphemy and/or religious insult in
your country? Can this be explained on the basis of:
a. historical grounds, and if so which ones?
b. doctrinal grounds, and if so which ones?
c. other grounds?
2. Is there specific legislation prohibiting religious hatred? Is there, in addition
or instead, more general legislation prohibiting hate speech and/or incitement
to violence, and/or defamation, and/or discriminatory speech? Could this situ-
ation be explained on the basis of: 229

a. historical grounds, and if so which ones?


b. doctrinal grounds, and if so which ones?
c. other grounds?
3. Is there, in any of these provisions, a specific freedom-of-speech clause? If
not, how do these provisions relate to existing (constitutional) legislative provi-
sions concerning freedom of speech?
4. Is there in your opinion/according to the leading doctrine a need for addi-
tional legislation concerning:
a. the prohibition of blasphemy or religious insult?
b. incitement to religious hatred?
c. hate speech concerning a group?
d. speech or publication with a discriminatory effect?
e. negationism (denial of genocide or other crimes against humanity)?
5. Is there any case law concerning blasphemy, religious insult and/or incite-
ment to religious hatred?
If so, are there cases which resulted in the conviction of the perpetrator?
Blasphemy, insult and hatred

What is in such cases the procedural status of the victim(s)?


6. Did the distinction between blasphemy, religious insult, incitement to
religious or racial hatred, defamation or discriminatory speech play a
role in the case law, and was it pertinent to the outcome of the case?
What is the leading opinion in legal doctrine about the current relevance of this
distinction?
7. What role does the intention of the perpetrator and/or the foreseeability of
the (discriminatory) effects play in the formulation of the legal prohibition, and/
or in the prospect of a conviction?
8. Is the prosecution of the suspect of an act of blasphemy, religious insult or
incitement to religious hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against non-prosecution?
9. Does prosecution of these acts depend on a complaint by the victim(s)?
10. Have there recently been important incidents of alleged blasphemy, reli-
gious insult and/or incitement to religious hatred in your country that caused a
lot of public indignation and debate but were not prosecuted or not convicted?
230
What was the reason for non-prosecution/non-conviction? What role did free-
dom of speech play in that case?
11. What is the attitude of the press in relation to such cases? Do they report
with restraint in order not to aggravate the effects? Or do they purport to com-
pensate by publicity for the non-prosecution?
Appendices

Albania163
1. There is no specific legislation prohibiting blasphemy and/or religious insult
in Albania. The main reason for this, I think, is the fact that the law during the
communist regime prohibited religious belief for more than 25 years. This has
unavoidably led to a fear of discussing religious matters and somehow to a
weakening of the religious conscience as well. All the religions and believers
were considered in the same way during the communist regime as enemies of
the socialist system. Historically, Albanian religious doctrines, either Christian or
Muslim, have been very moderate.

After the fall of the communist regime, religious identity was not as evident as
before. All the religious groups were much more concerned about the fact of
guaranteeing the exercise of their religious beliefs vis--vis interventions from
state institutions. On the other hand, the atheistic period of more than 25 years
contributed to the establishment of social, economic, family and political inter-
religious relations. This religious mixed society has not given rise to marked blas-
phemy, or religious clashes.

The Criminal Code contains a specific section in relation to Criminal acts


against freedom of religion. This Section X contains three articles: 131,164
132165 and 133.166 However, these provisions do not specifically foresee cases
of blasphemy or religious insult. 231

2. Article 265 of the Albanian Criminal Code provides for Inciting national,
racial or religious hatred or conflict as a criminal infringement. Its provision
foresees:

Inciting national, racial or religious hatred or conflict, as well as preparing,


propagating, or keeping with the intent of propagating, writings with that con-
tent, is punishable by a fine or up to ten years of imprisonment.

a. The main historical ground for such provision is the Ottoman and communist
past of Albania. Under both regimes, religious beliefs and believers were prose-
cuted. Under the Ottoman Empire, Christian believers were prosecuted if not fol-
lowing the official religion. Under the communist regime, religion was officially
prohibited and all believers and religions were persecuted by the state bodies.

163. Reply by Mr Ledi Bianku, former Member of the Venice Commission, Albania.
164. Article 131 Obstructing the activities of religious organisations: Ban on the activity of reli-
gious organisations, or creating obstacles for the free exercise of their activities, is punishable by a
fine or to up to three years of imprisonment.
165. Article 132 Ruining or damaging objects of worship: Ruining or damaging objects of wor-
ship, when it has inflicted the partial or total loss of their values, is punishable by a fine or up to three
years of imprisonment.
166. Article 133 Obstructing religious ceremonies: Ban or creating obstacles for participating in
religious ceremonies, as well as for freely expressing religious beliefs, constitutes criminal contraven-
tion and is punishable by a fine or up to one year of imprisonment.
Blasphemy, insult and hatred

The risk of this was that the Albanian population and especially young people
were educated with the idea of anti-religious and atheistic culture.

b. As explained above, there are four official recognised religions in Albania.


Despite the fact that until now there have not been problems as to religious
hatred acts between members of different religious groups, I think the inclusion
of such provision in the criminal code helps to lead citizens to the tolerant behav-
iour they should maintain with individuals belonging to other groups.

3. The most pertinent provisions we find in the Albanian legislation in this rela-
tion are the ones of articles 131 and 133 above-mentioned, which could be
interpreted as offering a guarantee for the free expression of religious beliefs.

At first, both provisions give the impression of protecting only religious organisa-
tions (Article 131) and ceremonies (Article 133). A teleological interpretation,
however, could bring us to the affirmation of a freedom of speech clause in
religious beliefs. The provision creating obstacles for the free exercise of their
activities in Article 131 and especially Ban or creating obstacles for partici-
pating in religious ceremonies, as well as for freely expressing religious belief
in Article 133, I think, offers a guarantee for the exercise by each individual of
his/her right for free speech in religious matters.

232 4. The Ministry of Culture in Albania, which covers also relations with religious
communities, is actually considering the drafting of a law on religious matters.
I think all the questions raised in this report could be considered in the process
on the drafting of this law.

5. According to the data received by the Ministry of Justice, there is no case law
so far in Albania concerning blasphemy.

6. As there is no case law in this relation it is not possible to formulate an opin-


ion in relation to this question. Anyway, after conducting a number of informal
exchanges of views with several judges and prosecutors on different levels in
Albania, it could be asserted that there is no clear distinction between these
concepts.

In relation to blasphemy, religious insult and incitement to religious or racial


hatred speech, there are no articles in Albanian legal doctrine. This is mostly
because the question has not come to the attention of society or lawyers, for
the reasons described briefly above, whereas questions of defamation and dis-
criminatory speech, though not specifically in cases related to religious beliefs,
have been considered in the doctrine. The main concern was the fact that defa-
mation and discriminatory speech are considered as criminal infractions by the
Criminal Code. General opinion in Albania, following Council of Europe and
EU recommendations, is for decriminalisation of these acts. But there is no an
elaborated doctrine or clear jurisprudence for clarifying what really defamation
is and what discriminatory speech means.
Appendices

7. Although the intention is not foreseen specifically as an aggravating cir-


cumstance by Article 50 of the Criminal Code, it might be considered as an
important element for the court in determining the conviction. Article 47 of the
Criminal Code foresees:
The court determines the punishment in compliance with the provisions of the
general part of this code and the limits of punishment on criminal acts provided
for by law. In determining the range of punishment against a person the court
considers the dangerousness of the criminal act, the dangerousness of the per-
son who committed the act, the level of guilt, as well as both mitigating and
aggravating circumstances.
Considering the intention of a perpetrator as an element (subjective criterion) for
determining the level of guilt, it might be asserted it plays an aggravating role
in the conviction of the act.
8. Prosecution of an act prohibited by articles 131 to 133 of the Criminal Code
(which in our opinion could be used for prosecuting the above acts) could start
either by indictment by the victim or ex-officio by the prosecutor. According to
Article 24 of the Albanian Criminal Procedure Code:
2. The prosecutor has the discretion to decide whether to not initiate or dismiss
the criminal actions in cases provided by this code.
There is a general supervisory procedure within the Prosecutor office hierarchy. 233
In this relation, Article 305 of the Criminal Procedure Code foresees that:
1. If the district prosecutor does not exercise the criminal proceedings or does
not terminate within the fixed time-limits, the General Attorney, on demand of the
defendant, the injured person or even ex-officio orders by a reasoned decision
the undertaking of the investigations,
2. The General Attorney carries out the necessary investigations and com-
piles his requests within thirty days from the decision of the undertaking of
investigations.
Article 24.5 and Article 329 of the Criminal Procedure Code do foresee the
entitlement of the injured and the defendant to appeal against the decision dis-
missing the case in the district court, except when a decision has proved that the
fact does not exist. The district court can decide in those cases the continuation
of the investigation.
9. According to Article 284 of the Albanian Criminal Procedure Code: 1. For
the criminal offences provided by articles 85, 89, 102 first paragraph, 105,
106, 130, 239, 240, 241, 243, 264, 275 and 318 of the Criminal Code, the
prosecution may start only by indictment brought by the injured, who may with-
draw the same at any stage of the proceedings.
As above asserted, in Albanian legislation, investigation of the acts considered
by the questionnaire could be based only on articles 131 to 133 of the Criminal
Blasphemy, insult and hatred

Code. These articles are not included in the enumeration of Article 4 of the Crim-
inal Procedure Code. Therefore, the investigation of the related acts could start
upon either indictment of the victim or ex-officio by the prosecutor.

10. There have been three or four cases in Albania during the past three years
characterised by religion-related disputes. In 2004 two writers in Albania were
threatened by radical Muslim believers for their writings. In 2005 a cross of the
Catholic community was destroyed near Shkodra, and in 2006 the Shkodra
Muslim community disagreed with the decision of the city council to place a
monument to Mother Theresa at the entry to the city. Both incidents were widely
condemned by public opinion and also by all religious authorities in Albania,
including higher Muslim authorities.

11. The press merely reported such cases, without following with a deep and
scientific analysis into the situations. Also in the case of the Danish cartoons, the
debate was quite weak, descriptive and partisan. The purpose of reporting has
been merely commercial, for the newspapers and televisions to attract the public
and not really to lead them to a specific idea or behaviour, which should have
been tolerance.

Austria167
234 1. The Austrian legal system does not prohibit any sort of blasphemy or religious
insult in a general way. However, the Criminal Code forbids some acts under
specific circumstances.

Section 188 of the Austrian Penal Code deals with the offence of disparaging
of religious precepts:

Everyone who publicly disparages or mocks a person or a thing, respectively,


being an object of worship or a dogma, a legally permitted rite, or a legally per-
mitted institution of a church or religious society located in Austria, in a manner
capable of giving rise to justified annoyance is liable to imprisonment for a term
not exceeding six months or to a fine.

Section 189 of the Penal Code provides for the offence of disturbance of the
practice of religion:

1. Everyone who

forcibly or threatening with force

precludes or disturbs divine service or an act of divine service of a church


or religious society located in Austria

is liable to imprisonment for a term not exceeding two years

167. Reply by Mr Christophn Grabenwarter, Member of the Venice Commission, Austria.


Appendices

2. and everyone who commits mischief at a place destined for a legally permit-
ted practice of religion or on the occasion of a legally permitted public divine
service or a legally permitted act of divine service or with an object directly
destined for a legally permitted divine service of a church or religious society
located in Austria in a manner capable of giving rise to a justified annoyance is
liable to imprisonment for a term not exceeding six months or to a fine.

Some remarks might be interesting: Penal protection does not only protect legally
recognised but all religious societies located in Austria which have at least some
believers. Therefore, the faith of the religious individuals is not relevant for the
purposes of penal law.

Provisions neither protect any religion itself or any divine authority nor the faith
in such an authority. Instead, the law protects religious peace among human
beings. The Penal Code does not protect respect for divine authority but respect
for human feelings, which forms a condition for peaceful social interaction of
different churches, religious societies and those without religious denomination.
Thus there is specific legislation prohibiting specific religious insult; whether blas-
phemy is prohibited as well depends on the interpretation of this term. Insofar
as blasphemy causes insult of religious feelings one can assert that it is under
certain circumstances prohibited as well. Yet one of the provisions mentioned
above remains the starting point of any such consideration.
235
The status quo of the law has historically emanated from the Enlightenment and
humanism. In ancient legal systems (e.g. Viennese municipal law in 1221) blas-
phemy and similar offences were deemed to be the worst crimes, which makes
clear the theological basis of criminal law. Religious offences formed a consid-
erable part within the Constitutio Criminalis Theresiana of 1768 and were sen-
tenced draconically. Codes between 1803 and 1852 kept religious offences,
stipulating much more lenient sentences than before; for the first time faith in
God instead of God Himself was subject to protection. These provisions were
in force up to a legislative reform in 1975, which established the current provi-
sions aiming merely at securing religious peace. From a historical point of view,
gradual penal secularisation has led to a stringent development of legal provi-
sions up to the present date.

Irrespective of this development, legal doctrine justifies a certain extent of penal


protection for the constitutional freedom of religion168 by taking it as both a
positive and a negative right vis--vis the state. The positive aspect of the free-
dom leads to a constitutional obligation to protect religious feelings so as to
guarantee religious peace (religious protection of personality). Case law of the
European Court of Human Rights supports such an interpretation.169

168. More precisely Article 14 of the Austrian Basic Law and Article 9 of the ECHR.
169. European Court of Human Rights, judgment of 20 September 1994, Otto-Preminger-Institut
v. Austria, Series A No. 295A.
Blasphemy, insult and hatred

2. In its Part 20 the Penal Code includes offences which violate the public
peace. While its Section 281 prohibits calling for disobedience vis--vis any
law, Section 282 is more specific: it prohibits most notably calling upon people
to violate a penal provision. According to both provisions this has to be effected
in a printed medium, broadcast or in any other way reaching a broad public.
Finally, Section 283 sets up an even more specific offence: incitement.
Everyone who publicly
calls upon or goads to a hostile act against a church or religious society
located in Austria or against a group belonging to such a church or religious
society, a race, a people, a tribe or a state, in a manner capable of endanger-
ing public order, or
incites against or insults or decries in a way of hurting human dignity a group
belonging to a race, a people, a tribe or a state is liable to imprisonment for a
term not exceeding two years.
In this context incitement means trying to evoke hate and disdain. Incitement
against other groups than those mentioned in the provision is not prohibited;
churches and religious societies are not protected as institutions by paragraph 2
either. Another difference is that only paragraph 1 mentions the possibility of
endangering public order whereas paragraph 2 prohibits any public incitement.
236
The incitement under sections 281 and 282 relates to breaking the (criminal)
law whereas the incitement under Section 283 paragraph 1 relates to any hos-
tile act against certain groups. Section 283 paragraph 2 bears no element of
calling upon anyone else but punishes plainly the hostile speech.
In addition, Section 317 of the Penal Code prohibits disparaging of symbols,
such as flags and other national emblems of a foreign state or an international
institution, in a hostile manner, if those symbols have been installed officially and
if a broad public is reached.
3. None of the mentioned provisions contains a particular freedom-of-speech
clause. Freedom of speech is granted in explicit terms only in the Constitution.
On the one hand the Austrian Constitution guarantees the freedom to impart
opinions170 and to create, impart and teach art;171 on the other hand Article 10
of the European Convention on Human Rights (ECHR) provides for freedom of
expression. Article 10 paragraph 2 of the ECHR, which forms also part of con-
stitutional law in Austria, enables the legislator to set up certain restrictions nec-
essary in the public interest.
The specific restrictions of freedom of speech in favour of religious feelings
appear to be in conformity with the Constitution and the ECHR; the protection of
religious peace lies within the scopes of public interest (Article 10 paragraph 2

170. Article 13 of the Basic Law on Rights and Freedoms of Citizens.


171. Article 17a of the Basic Law on Rights and Freedoms of Citizens.
Appendices

of the ECHR: prevention of disorder) and proportionality. As to the latter cri-


terion, one can argue that not every expression about God or religion per se
is penalised; in fact, the expression has to be a disparaging or mocking one
and in addition one that is capable of giving rise to a justified annoyance. By
means of this open wording, courts can reach a decision after an appreciation
of values and therefore reject minor crimes. There is a range of sanctions, but
the maximum term of imprisonment of six months is comparatively humble (a
similar provision in the German Penal Code provides for a prison term of up to
three years).172

4.a. To my mind there is no lack of such legislation. By virtue of sections 188


and 189 of the Penal Code, acts causing social disorder are caught. In turn,
another regime going beyond this extent might be less proportional and thus
cross the border of the interference allowed by Article 10 paragraph 2 of the
ECHR on freedom of expression.

4.b. The same applies to Section 283 of the Penal Code as to sections 188 and
189 of the Penal Code (see a.).

4.c. There is no need for such additional legislation.

4.d. The prohibitions of Section 283 of the Penal Code appear sufficient
to me (see c.). Beyond the limits of Section 283 of the Penal Code there is
no provision that prohibits speech or publication with a discriminatory effect 237

related to a group, save the provisions in the context of National Socialism: The
Verbotsgesetz the Law on Interdiction [of national socialist organisations and
institutions] forbids calling publicly for the re-establishment of certain national
socialist organisations or getting involved with the former National Socialist
German Workers Party (Nationalsozialistische Deutsche Arbeiterpartei) or its
goals. In addition, the Verbotsgesetz provides for a catch-all element prohibit-
ing any act in favour of national socialist ideas. By means of this regime one
catches certain speeches or publications with a discriminatory effect (further-
more, see e).

Existing provisions in matters of discrimination established in other laws, such as


the law of equal treatment or certain clauses in employment law, do not refer to
speech or publication.

4.e. As regards negationism, there is only legislation in reference to National


Socialism. The Austrian Constitutional Court declared that uncompromis-
ing rejection of National Socialism was a fundamental characteristic of the
Austrian Republic after the Second World War.173 This legislation is based on
the Austrian State Treaty of 1955 and the Verbotsgesetz of 1947. Section 3h
of the Verbotsgesetz prohibits qualified public denial, considerable belittlement,

172. Section 166 of the German Penal Code.


173. Collection of Decisions of the Constitutional Court 10.705/1985.
Blasphemy, insult and hatred

endorsement or the attempt to justify national socialist genocide or other national


socialist crimes against humanity.
In contrast to this legislation, denial or belittlement of other crimes against
humanity is not prohibited. Possibly, Section 283 of the Penal Code might be
applied to such cases.
5. According to the case law of Austrian courts, freedom of expression and
freedom of art have no unlimited scope. Limits consist of immanent bounds
and bounds arising from the effect of other fundamental rights. In case law, Sec-
tion 188 of the Penal Code constitutes a necessary condition for efficient use of
freedom of religion (see 1); for this reason courts have not yet denied the appli-
cation of this provision to freedom of expression or freedom of art.174
In the event of a conflict between two fundamental rights, one comes to a deci-
sion after weighing up the two different aims; to this end the wording of Sec-
tion 188 of the Penal Code leaves sufficient space for weighing up.
The most important cases in which religious feelings played a crucial role are
the following:

1. The film Das Gespenst, Supreme Court 1984:


The movie Das Gespenst shows Jesus Christ after having descended from the
238 cross as a drunken and bawling derelict having sexual contact with the matron
of a convent; also he scoffs at his own acts without still bearing them in mind.
Both the court of first impression as well as the court of appeal considered the
movies tenor disparaging religious precepts in the sense of Section 188 of
the Penal Code. The court of appeal argued that one reaches a fundamental
rights immanent bounds once the regular and tolerance-based human interac-
tion appears violated. The Supreme Court did not decide on the merits due to
previous procedural mistakes. Notwithstanding, doctrine has recognised in the
assertions of the Supreme Court that it approves the way of tackling the conflict
between two fundamental rights; and that it advances the view that freedom of
art shall not protect the disparaging of religious precepts in a repeated and sus-
tained fashion in pursuance to Section 188 of the Penal Code.

2. The film Das Liebeskonzil, Court of Appeal (Innsbruck) 1987:


A similar case concerns the film Das Liebeskonzil, planned to be shown in a cin-
ema in Innsbruck, the capital of the province of Tyrol, a case which reached the
European Court of Human Rights. God the Father is showed as senile, impo-
tent idiot, Christ as a cretin and Mary Mother of God as a wanton lady with a
corresponding manner of expression. Courts held in 1987 that the showing of
the pictures is prohibited under Section 188 of the Penal Code because of the

174. In the Austrian constitutional system, by appealing to the Constitutional Court in order to open
a procedure under Article 140 Federal Constitutional Law, in which it pronounces whether the law
is unconstitutional.
Appendices

massive mockery of religious feelings. It was crucial that a predominant major-


ity of average believers would consider the film disparaging and degrading.
The European Court of Human Rights did not find a violation of Article 10 of
the Convention in the seizure and forfeiture of the film either. These measures
interfered with the right of freedom of expression but were, however, aimed at
the protection of the rights of others and necessary because these expressions
were gratuitously offensive to others and thus an infringement of their rights,
and which therefore do not contribute to any form of public debate capable of
furthering progress in human affairs. In weighing up the different interests under
articles 9 and 10 of the ECHR, the Court had regard to the fact that the Roman
Catholic religion was the religion of the overwhelming majority of Tyroleans.
Both criminal proceedings, concerning Das Gespenst and Das Liebeskonzil,
were conducted as so-called independent procedures not directed towards the
conviction of an individual but aimed at the forfeiture of the film.
The film Das Liebeskonzil is based on a theatre play from 1894. Theatre per-
formances of this original play took place in Vienna in 1991 and Innsbruck in
1992. Whereas in Vienna the authorities took no action whatsoever, the authori-
ties in Innsbruck discontinued proceedings after preliminary investigations.

3. The comic strip The Life of Jesus 2002:


A younger example is the comic strip of Gerhard Haderer who portrayed Jesus 239
Christ, in his book The Life of Jesus,175 as continuously intoxicated as a result of
consuming frankincense, which turns him into a sweet-tempered dreamer deriv-
ing his divine inspiration from drugs and working wonders rather at random.
The apostles exploit the harmless man in order to benefit themselves. Unlike the
previous examples the public prosecutor neither opened proceedings pursuant
to the Media Act nor indicted the author.
So far there has not been any conviction pursuant to section 188 of the Penal Code.

4. Graffiti, national socialism and racism:


A decision of the Supreme Court dealing with the objective characteristics of
Section 283 of the Penal Code is not directly connected to religious hatred.
The Court did not decide on the merits, but it held that the graffiti on a publicly
located building in the shape of a swastika, SS-runes and the words hatred
and Turks out may be prohibited under Section 283.176

5. Muslim preacher and incitement to religious hatred:


A current case (the public prosecutor is reviewing the facts) matches more pre-
cisely the question: allegedly, the fatwas (Islamic legal opinions) of a Muslim

175. Das Leben des Jesus.


176. A crucial question was whether the perpetrator could be convicted despite a damage-to-prop-
erty conviction.
Blasphemy, insult and hatred

preacher of a Viennese mosque contain elements that possibly conflict with Sec-
tion 283 of the Penal Code. However, there is no precise information about the
outcome of the investigation at the moment.
6. The distinctions play a role neither in case law nor in leading doctrine
because the penal provisions do not use these terms.
7. The intention of the perpetrator does not play a specific role; if an offence
does not provide for anything else, the law prohibits merely intentional
acts/omissions. Since there are no offences of negligent disparaging of reli-
gious precepts or negligent incitement, the perpetrators guilt presupposes his
intent. In other words, the perpetrator must consider the realisation of the facts at
least possible and accept this realisation (conditional intent). In the case of Sec-
tion 283 of the Penal Code the intention refers to the act itself (e.g. prompting
or goading), the publicity and the possible effect of endangering public order.
This applies specifically to Section 188 of the Penal Code; the perpetrators
intent refers on the one hand to the disparaging or mocking of certain persons,
things or institutions and on the other hand to the manner capable of giving rise
to a justified annoyance, while there is no necessity of intention as to the blas-
phemy itself. Whether the perpetrator is willing to act against God or a church
does not play any role.
240
The foreseeability of certain potential effects is an element of the offences: the
act is criminal if it is capable of giving rise to a justified annoyance or endanger-
ing public order. Whether the annoyance/disorder occurs does not play a role.
The intent of the perpetrator has to comprehend this ability.
Both, intention and foreseen and accepted effects, are elements of the offence
and are therefore not more and not less than two preconditions for the guilt and
the conviction. The Penal Law provides some grounds of aggravation, among
which are racist, xenophobic or other particularly condemnable motives of the
perpetrator, influencing the sentence. Insofar as such motives are inherent in the
formulation of the relevant offences, this ground of aggravation must not have
an impact on the sentence.
8. When review of the facts gives rise to the assumption that someone has com-
mitted a crime and that a conviction appears more likely than an acquittal, the
public prosecutor is obliged to indict the person concerned.177 Hence, he has to
assess the facts, the legislation and the case law. This procedure is not a discre-
tionary decision.
Within the Austrian constitutional system the public prosecutor is an adminis-
trative agency, so there is supervision in the fact that the Minister of Justice
may give directives. There are neither appeals nor other remedies against
non-prosecution.

177. Or to open a diversional procedure pursuant to Section 90a of the Penal Procedure Law.
Appendices

9. No contribution whatsoever by the victims is required.

10. The only recent example of incitement to religious hatred which aroused a
lot of public indignation was The Life of Jesus in 2002. Mr Haderer, the author,
was not indicted because the public prosecutor found that he had not commit-
ted a crime by writing his book. Freedom of speech played no (obvious) role
because the public prosecutor has only to assess the likeliness of a conviction;
irrespective of the case law weighing up freedom of speech and freedom of reli-
gion, which has to be taken into account, freedom of speech is not relevant at
this stage of the proceedings.

11. The recent attitude of the press refers (for lack of national cases) to foreign
events such as, for instance, the conflict on the Danish cartoon. In this mat-
ter, reports have been neutral whereas comments have referred to freedom of
expression on the one hand and respect for religious feelings on the other hand.
The tenor was mainly the necessity in a secular society to respect the freedom
of expression, including the right to produce cartoons. This freedom must exist
in a legal and a de facto way; for this reason the press should not shy at any
publications due to possible implications. Notwithstanding, most newspapers
did not reprint the Danish cartoons so as not to intensify the debate or to draw
it to Austria.

The public discussion on the occasion of The Life of Jesus (see 5) was more lurid.
241
The book in question with cartoons was subject to a discussion with intense
argument on both sides in all the media. The Archbishop of Vienna commented
on the pictures in an important daily paper, provoking a reply from the author.
Other comments were dependent on the political alignment of the respective
medium or the respective commentator.

Belgium178
1. It seems important to associate with religious insults some offences protecting
the peaceful practice of religious rituals. These are the main provisions of the
Belgian Criminal Code in this field.

Article 142: Anyone who uses violence or threats either to force one or more
persons to practise a religion, attend religious services, celebrate particular reli-
gious festivals, observe particular days of rest and hence open or close their
shops or workshops or perform or cease certain types of work, or to prevent
one or more persons from doing so, shall be subject to a prison sentence of
eight days to two months and a 26- to 200-franc fine.

Article 143: Anyone who impedes, delays or interrupts an act of worship per-
formed in a place of worship or a place ordinarily used for worship, or as part
of a public religious ceremony, by creating disturbance or disorder, shall be

178. Reply by Mr Louis-Lon Christians, Professor, Catholic University of Louvain, Belgium.


Blasphemy, insult and hatred

subject to a prison sentence of eight days to three months and a 26- to 500 franc
fine.

Article 144: Anyone who insults a religious object by means of actions, words,
gestures or threats, whether in a place of worship or a place ordinarily used for
worship or during a public religious ceremony, shall be subject to a prison sen-
tence of 15 days to six months and a 26- to 500-franc fine.

Article 145: The same penalties shall apply to anyone who insults a minister of
religion, in the exercise of his or her ministry, by means of actions, words, ges-
tures or threats. Assaulting a minister of religion shall carry a prison sentence of
two months to two years and a 50- to 500-franc fine.

Article 146: Should such an assault occasion bloodshed, injury or illness, the
perpetrator shall be subject to a prison sentence of six months to five years and
a 100- to 1 000-franc fine.

2. The extension in 2003 of the previous racist hate-speech legislation to a


protection against religious discrimination and religious hate speech was very
controversial and difficult during the debate in Parliament. The main arguments
were the danger of religious extremisms and the democratic necessity for the
civil society to be able to use fighting words against these religious abuses (espe-
242
cially against Islam and cults). But finally, in order to respect the EU Directive
78/2000, the 2003 law has been actually extended to cover religious discrimi-
nation and hate. Since January 2007, a new bill has been under discussion in
Parliament to replace the 2003 law.

Sections 2 and 6 of the Anti-Discrimination Act of 25 February 2003, amending


the Act of 15 February 1993 on the Establishment of a Centre for Equal Oppor-
tunities and Combating Racism (Parliament has been debating a new Act since
January 2007: see below) provide inter alia as follows.

2.6: Harassment shall be held to be a form of discrimination where undesirable


behaviour related to the grounds for discrimination set forth in paragraph 1a
is intended to violate a persons dignity and create an intimidating, hostile,
degrading, humiliating or offensive environment, or has the effect of doing so.

2.7: Any behaviour whereby another person is ordered to practise discrimina-


tion against a person, a group, a community or the members thereof, on one of
the grounds [set forth in paragraph 1], shall be held to be discrimination within
the meaning of this Act.

6.1: A prison sentence of one month to one year and a 50- to 1000-euro fine,
or one of these penalties only, shall be applicable to:

anyone who, in one of the circumstances set forth in Article 444 of the
Criminal Code, incites discrimination, hatred or violence towards a person,
a group, a community or the members thereof, on grounds of gender, sexual
Appendices

orientation, civil status, birth, wealth, age, religious or philosophical beliefs,


current or future state of health, a disability or a physical characteristic;
anyone who, in one of the circumstances set forth in Article 444 of the
Criminal Code, advertises his or her intention to practise discrimination,
hatred or violence towards a person, a group, a community or the mem-
bers thereof, on grounds of gender, sexual orientation, civil status, birth,
wealth, age, religious or philosophical beliefs, current or future state of
health, a disability or a physical characteristic.
Bill No. 2722 on Combating Certain Forms of Discrimination (tabled on
26 October 2006) attempted to define the scope of religious grounds and the
concept of hatred thus.
Scope of the religious ground: In its aforementioned opinion of 11 July 2006,
the Council of State held that the ground of professing any other opinion, set
forth in Section II-81, could not be omitted from the list without an objective, rea-
sonable justification for doing so. It may be argued, however, that this reference
was unnecessary, bearing in mind that the concepts of religious or philosophical
beliefs and political beliefs are now interpreted very broadly under international
human rights law.
Scope of the concept of hatred:
incitement to hatred or violence towards a person on account of one of the 243

protected grounds, in the circumstances set forth in Article 444 of the Crimi-
nal Code (= public arena), even where it does not concern the aspects cov-
ered in Section 5 of the Bill;
incitement to discrimination against or segregation of a group, a commu-
nity or the members thereof on account of one of the protected grounds, in
the circumstances set out in Article 444 of the Criminal Code, even where
it does not concern the aspects covered in Section 5 of the Bill;
incitement to hatred or violence towards a group, a community or the mem-
bers thereof on account of one of the protected grounds, in the circum-
stances set forth in Article 444 of the Criminal Code, even where it does
not concern the aspects covered in Section 5 of the Bill.
The Federal Centre for Equal Opportunities and Combating Racism at
www.diversite.be supplied a description of religious grounds. The Centre inter-
prets religious or philosophical beliefs to mean beliefs concerning the exist-
ence or otherwise of one or more deities. They also include philosophical beliefs
such as atheism, agnosticism and secularism. Philosophical beliefs unrelated to
issues surrounding the existence or otherwise of one or more deities are not cov-
ered by the Centres work.
3. In the Belgian Constitution, freedom of speech and freedom of religion are
protected by the same provision, Section 19: Freedom of religion, the freedom
Blasphemy, insult and hatred

to practise a religion in public and the freedom to express ones opinions on


any subject shall be guaranteed, without prejudice to the punishment of offences
committed in exercise of these freedoms.
Press and media freedom is protected under Section 25. The press is free; cen-
sorship cannot be introduced; and authors, publishers and printers cannot be
required to obtain approval. Where the author is known and resident in Belgium,
the publisher, printer and distributor cannot be prosecuted.
4. There is no debate in Belgium in favour of a new offence of religious insult.
The bill now being discussed in Parliament would confirm some new offences
related to religious hatred and group hate speech.
The offence of negationism enacted in Belgian law in order to protect the histo-
ricity of the Jewish Shoah is often discussed as discriminatory, because of the
lack of protection for the historicity of the Armenian genocide.
5. The relevant case law is as follows:
Court of Appeal of Ghent, 2 May 1988, judgment not published, about
some sexual perversity of Jesus Christ and Virgin Mary, no conviction of the
perpetrator.
Court of Appeal of Liege, 28 November 2001, Journal des Tribunaux
244 (2002), p. 308, about some fighting words from the Raelian Movement
against the Catholic clergy, conviction of the perpetrator.
Criminal Court of Brussels, 11 April 1991, JLMB Revue de jurisprudence
de Lige, Mons et Bruxelles (1991), p. 804, about the expression juif per-
sona non grata, conviction as racial offence.
Civil Court of Brussels, 25 July 2001, (2001), p. 1575, about some polemi-
cal accusations against the Raelian Movement, no conviction.
Council of State, 28 August 2000, about the refusal by the Post Company to
distribute some discriminatory advertising, conviction as unlawful censure.
6. and 7. Insufficient data.
8. Prosecutions of these offences are at the discretion of the public prosecutor.
Criminal procedure enables also some kind of citation directe by victims for dif-
ferent types of offence.
9. Only common harassment offences exclusively depend on a complaint by
the victim.
10. Three recent public debates and attempt of prosecutions:
During an art exhibition Europalia Poland, a Catholic priest accepted a
display of some artistic photos in his church. These pictures (a naked
Virgin Mary etc.) offended some parishioners, but not the priest in charge
of the parish. These parishioners tried to stimulate a public prosecution.
Appendices

But, in review, they failed in their attempt because no church authorities


(the Bishop) confirmed a hypothesis of sacrilege (provided by the penal
code).
In another art exhibition, a large picture of a quasi-naked woman was
placed on the main entrance of an (ancient) church, just near a statue of the
Virgin Mary, and this provoked a large public debate, but no prosecutions.
In a public oration, a very well-known Oriental Catholic priest (revoked
previously by his bishop) affirmed that a true understanding of the Quran
(Koran) shows that Islam is more dangerous for Europe than Hitler himself.
A public prosecution for racial (and not religious) hatred has been opened.
11. One of the most influent and progressive French-speaking newspapers
decided in February 2006 not to publish the Danish cartoons. This was the edi-
torial comment on page 5 of Le Vif/LExpress (10 February 2006):
Continental Drift

Pencil strokes can be deadly, as the astonished Western world has discovered in
totting up the number of deaths already caused by the demonstrations in Lebanon
and Afghanistan. A few poor drawings of the prophet Mohammed, published in
Denmark more than four months ago now, are all that was needed to set ablaze
much of the Arab Muslim world. Public apologies have made no difference; anger
has spread like a raging pandemic, setting embassies alight, sacking a church and
245
tearing up co-operation agreements.

The violence of what we Westerners regard as an insane response must be unequiv-


ocally condemned by all those who reject obscurantism, terror and hate-fuelled rad-
icalism. The latter, it must be emphasised, are not confined to one side of the planet.
Although they are finding it more difficult to make themselves heard amid the cur-
rent commotion, there are Muslims in both Brussels and Beirut who reject such vio-
lence, calling for calm. This does not mean they themselves are any less offended
by the cartoons, which make a ludicrous connection between Islam and terrorism.

The West has been taken aback by both the demonstrators over-reaction and the
extent to which it has spread. In actual fact, the reasons for this anger are not
identical everywhere, and nor is its degree of sincerity. Some governments have
exploited the protests for purely political ends. Nor can Fatahs electoral frustra-
tions in the Palestinian territories and the tension between Islamists and Christians
in Lebanon be overlooked as factors contributing to the radicalisation on the street.
In Iran, Iraq and Afghanistan, Europe has taken over the role of great Satan nor-
mally assigned to the United States. Yet in the European Union, which is home to
15 million Muslims, many of the latter have simply expressed their exasperation in
the face of an Islamophobia that caricatures them as bomb-layers and continually
condemns them to blanket rejection.

With its sacked consulates and calls to murder, the Mohammed affair evokes
the terrifying spectre of a clash of civilisations. Accepting the latter as inevitable
would be the worst possible attitude, prompting all sides to prepare for it mentally.
Yet it can hardly be denied that relations between the West and the Arab Muslim
world appear to be worse than ever. This time, the clamour is being caused not by
Blasphemy, insult and hatred

the marching armies led by Bush senior or junior, but simply by a few little draw-
ings. This illustrates the widening gulf between the two worlds: it is as if they were
being dragged apart by a slow continental drift. When it comes to religious expres-
sion, media irreverence, the image culture and the role of satire, de-Christianised
Europe is now utterly at odds with those nations that are (re-)Islamised right to the
very core of the state.

How can they be persuaded to accept, over there, that cartoonists in a free press
exercise a salutary occupation, guarding against the homogenisation of thought?
Cartoonists do not like excessive politeness. Yet they share two responsibilities with
journalists, which are not necessarily entirely compatible. On the one hand, they
must uphold freedom of expression by exercising it, since it will be worn down
only if it is not used. On the other hand, they must respect people and their beliefs,
race and dignity. The latter responsibility is not simply the cowards version of the
former. Here too, it may take courage to refrain from howling with the pack or to
avoid easy effect. From this perspective, portraying Mohammed with a bomb in
his turban is clearly a faux pas. It is one thing to scoff at the statements, decisions
or weaknesses of dignitaries, even religious dignitaries. It is quite another to stig-
matise a religion by attacking its foundations. This is the same kind of despicable
generalisation used to caricature the Jews in the past and immigrants today, fuelling
anti-Semitism and xenophobia. In a strange reversal, however, the Danish cartoon-
ists and subsequently many other newspapers have merely strengthened that which
they sought to weaken. Freedom of the press is scoring fewer points here than
freedom-busting religious fundamentalism.
246
Le Vif/LExpress has therefore opted not to publish the impugned drawings, and will
not do so. Nevertheless, its visceral attachment to freedom of opinion, including the
right to irreverence, remains intact. In order to emphasise this, we have specially
invited seven cartoonists from other Belgian media to address various topics in this
issue. Pencils are essential, provided they are used only to make us laugh or think.

Jean-Franois Dumont

The same journal regularly published all kinds of religious satirical cartoons,
without any public discussion.

Denmark179
1. There exists a specific prohibition regarding blasphemy in the Criminal Code,
namely Section 140. The section prohibits blasphemy, which is defined as acts
which publicly ridicule or insult in Denmark legally existing religious communi-
ties dogmas or worship. In addition Section 139, subsection 2, prohibits inde-
cent use of items belonging to the Church.180 The Criminal Code in force dates
back to 1930, when it replaced the Criminal Code of 1866.

179. Reply by Mr Christoffer Badse, Researcher, Danish Institute for Human Rights.
180. As a primary source of information for the historical description of sections 140 and 266.b,
and for historical references to explanatory notes, the author has primarily made use of Appendix 1
J.nr. RA-2006-41-0151 of 15 March 2006 Gennemgang af relevante retsregler mv. Published by
the Director of Public Prosecutions.
Appendices

Danish Criminal Code Section 140 (Prohibition against blasphemy) reads: Any
person who, in public, mocks or scorns the religious doctrines or acts of worship
of any lawfully existing religious community in this country shall be liable to
imprisonment for any term not exceeding four months.181

Historical background
Blasphemy was criminalised in Danish Law (Danske Lov) in Book Six dating from
1683 on misdeeds, chapter 1, provision 7 (6-1-7 and 6-1-8), where blasphemy
was considered a capital crime. This piece of legislation was primarily a codi-
fication of existing law and was considered a major achievement during the
period of absolute monarchy. However, new laws such as the provision against
blasphemy were also introduced. The inspiration and structure of the criminal
provisions can be traced back to the Decalogue and Mosaic Law, which were
common sources of inspiration at the time. The result was that blasphemy was
judged very harshly, up until the introduction of the Criminal Code of 1866,
which was influenced by the period of the Enlightenment and the philosophy of
natural law. It should be mentioned that there is no record that acts of a blasphe-
mous character actually resulted in an execution.

The Criminal Code of 1866


The provision on the prohibition of blasphemy in the Criminal Code of 1866
was maintained in the Criminal Code of 1930 in the chapter on crimes against 247

public order and peace, which also included a ban on instigation of public
disorder. Hence, religious peace is considered part of the peace of society
(according to the explanatory notes to the first draft of a new criminal code in
the report on the provision from 1912). This is contrary to the prohibition against
hate speech, which is located in the chapter on crimes against peace and hon-
our, which includes for example the prohibition against defamation of character
(see below). The Criminal Code of 1866 is very similar to the Criminal Code of
1930; however the provision in the 1866 code also covered the prohibition of
non-public blasphemous statements.

The Criminal Code of 1930


In preliminary work before the introduction of the Danish Criminal Code of
1930 the majority of the Commission which prepared the draft bill stated in a
report (Straffelovskommissionen of 9 November 1917, 1923, sp. 244-245):
Where the limits of freedom of expression are overstepped in this area in an inde-
cent way, the denunciation which is expressed in public opinion is much more
efficient and natural than punishment. In relation to persons who find the religious
feelings of value, it is presumed that there is no wish for punishing blasphemous
statements or acts. And on the other hand, for those persons who find the protection

181. Source: Consolidated Act No. 1000 of 10 May 2006, the Criminal Code (Lovbekendtgrelse
2006-10-05 nr. 1000). Entry into force: 1 July 2006.
Blasphemy, insult and hatred

of religious feeling of a foreign nature, the use of punishment will in general be felt
as an absurdity.

The provision on blasphemy was not included in the first draft bill for a new
criminal code that was put forward in Parliament. The Ministry of Justice and the
Ministry of Ecclesiastical Affairs concurred with the majority of the commission
in their reasoning for abolition of the provision.

However, the Bill was not adopted. In 1928 a new government included a pro-
hibition against blasphemy in the Bill for a new criminal code. The government
referred (Rigsdagstidende 1927/28, Tillg A, sp. 5363) to the views of the
minority on the commission, which stated in the report:
In relation to ridicule and scorn of the religious feelings of the individual, there exists
a vivid sensation of the indecency in such behaviour. Such acts of indecency are
contradictory to the interests of society, which should be shown by making such acts
liable to punishment in serious cases. The minority has limited the criminal respon-
sibility to public expressions. For among numerous people both outside and within
religious communities it would be offensive if the State did not express its definite
disapproval.

Furthermore, the minority stated that there was no risk that the provision in its
current form would include religious criticism and expressions of religious doubt.
248
In the parliamentary debates it was also put forward that a large part of the
population would feel insulted by acts of a blasphemous character, hence a pro-
hibition was perceived to be in order. This supported the interpretation that the
prohibition is not as such introduced out of concern for the minority. Rather it is
perceived as a protection of the prevailing social order and peace.

After various proposals, amendments and discussions on the necessity of


such a provision, the Criminal Code of 1930 was adopted (Act No. 126 of
15 April 1930), including a prohibition against blasphemy. The provision
retained the original wording, except for three amendments of a technical char-
acter. There have since been various discussions on its abolition.

Discussions on the abolition of the blasphemy law

In the parliamentary year 1972-73 the Minister of Justice proposed abolition


of the provision, stating that public condemnation would be sufficient and no
criminal sanction was necessary. Further it was argued that the provision had
been used to prosecute acts of alleged blasphemy in only three cases (one
acquittal and two convictions). There was no general agreement on this issue in
Parliament and the proposal was postponed and not reintroduced.

In Report 1424 in 2002, the Council for the Criminal Code (Straffelovsrdet)
recommended a critical review of various sections in the Criminal Code includ-
ing Section 140 and its relation to, for example, Section 266.b prohibiting hate
speech.
Appendices

In 2004 in Parliament an opposition party, the Socialist Peoples Party (SF) pro-
posed a Bill to abolish Section 140 in the Criminal Code (Folketingstidende
2004/2005, 1. samling L 156), arguing that the section was obsolete and
there existed a sufficient and better protection in the Criminal Codes Section
266.b on hate speech.

Also, in 2004, a party supporting the government, the Danish Peoples Party
(DF), proposed a Bill to abolish Section 140 (Folketingstidende 2004/2005, 1.
samling Tillg A page 4704), arguing that in principle and from a religious
point of view it was a complete misunderstanding to have a provision on blas-
phemy in a Christian country. Furthermore, it was stated that the original mean-
ing of the provision was to protect ordinary decency, but now it had become
a matter of protecting religious feelings, which was a bad criterion for the rule
of law. Finally, the proposal was linked to the Danish broadcasting of Theo
van Goghs film Submission, criticism of religion, freedom of speech and the
complaint by some Muslims to the police on the movies alleged blasphemous
content.

None of the proposals was adopted.

2. A: The Danish hate-speech provision in the Criminal Code includes the pro-
tection of a group of people who are degraded etc. on account of their religion
etc. In addition there exists Section 81 of the Criminal Code.182 Section 266.b
249
(Hate speech) reads:183
1. Any person who, publicly or with the intention of wider dissemination, makes a
statement or imparts other information by which a group of people are threatened,
scorned or degraded on account of their race, colour, national or ethnic origin, reli-
gion, or sexual inclination shall be liable to a fine or to imprisonment for any term
not exceeding two years.

2. It shall be considered an especially aggravating circumstance if the conduct can


be characterised as propaganda.

Historical background

Section 266.b of the Criminal Code (straffeloven) prohibits the dissemination


of degrading etc. statements and propaganda. The group of people protected
includes individuals defined according to their religious worship. The provision
was inserted in the Criminal Code by Act No. 87 of 15 March 1939. The ori-
ginal wording of the provision prohibited by dissemination of false accusa-
tions or rumours to persecute or incite hatred against a group of the Danish

182. In other criminal acts with a racist motive, it is an aggravating circumstance, when the courts
are punishing an offence in the Danish Criminal Code, cf. section 81(1) No. 6, if the criminal act was
motivated by others ethnic origin, beliefs or sexual inclination. This section covers all criminal acts
(violence, threats, homicide etc.). This aggravating circumstance is mentioned in the same provision
as other aggravating circumstances.
183. Source: Consolidated Act No. 1000 of 10 May 2006, the Criminal Code (Lovbekendtgrelse
2006-10-05 nr. 1000 ), entry into force: 1 July 2006.
Blasphemy, insult and hatred

population on the basis of their faith, origin or citizenship. The reason for the
introduction of the new provision was, according to the explanatory notes, the
(at the time) recent persecution of racial and religious communities. The provi-
sion on defamation in the Criminal Code was rightly perceived not to be a suf-
ficient safeguard, since the group of people who fell victim to such an attack
could be unspecified to such a degree that the expression would fall outside the
legislative protection from defamation of each and every individual belonging
to the group in question.

The temporary wording


The provision got its temporary wording by Act No. 288 of 9 June 1971
amending the law prior to Denmarks ratification of the UN International Con-
vention on the Elimination of All Forms of Racial Discrimination (ICERD) of
21 December 1965. This may be compared with Administrative Order No. 55
of 4 August 1972, to ensure full compliance with Article 4 of ICERD, which
required immediate and positive steps to combat all incitement and practice of
racial discrimination. The amendment was based on Report No. 553/1969
on Prohibition of Racial Discrimination. By introducing the word scorn it was
intended to expand the scope of protection compared to the original wording
and the intention was also to criminalise ridicule. In addition the amendment
250
removed the criteria of false accusations and rumours, since other statements
as well were intended to be prohibited, though with due regard to the freedom
of speech. Furthermore it was explicitly mentioned that it was only public state-
ments or dissemination in a wider circle that were banned and the wording
degrading [in Danish: nedvrdigende] treatment or comments indicated that
statements of less severity should be exempted from punishment.
The initial proposal suggested the wording being the subject of derogatory
statements, but the latter formulation was perceived to be interfering with free-
dom of speech. The report rightly points out that the ratification of ICERD does
not require religion to be included in the provision, but including this ground
of discrimination was perceived as unobjectionable, since it was also in the
original version. This solution solved the issue of other international obligations
as well, namely the requirement to prohibit religious hatred as stipulated in the
International Convention on Civil and Political Rights (ICCPR) Article 20.
Certain amendments to the provision have been made. Sexual orientation was
inserted in the provision by Act No. 357 of 3 June 1987. The provision was
amended by Act No. 309 of 17 May 1995, where subsection 2 on propa-
ganda was inserted. According to the explanatory notes, the reason for the
amendment was the increased intolerance, xenophobia and racism both in Den-
mark and abroad. Furthermore, it was stated that Denmark should not be per-
ceived as a safe haven for dissemination of literature containing racism and
Nazism. The subparagraph can also be used in incidents where statements are
aimed against sexual orientation or religious beliefs. The word especially was
Appendices

inserted in subparagraph 2 of Section 266.b by Act No. 218 of 31 March 2004;


however there was no intention of changing the measurement of sentencing.
3. Part 8 (citizens rights and freedoms) of the Danish Constitution (Grundloven),
Section 77 says:
Anyone is entitled to publish his ideas in print, in writing and in speech, subject to
the authority of the Courts. Censorship and other preventive measures may never
be reintroduced.

Although the Constitutional Act guarantees freedom of expression for all, it may
be limited in some situations, including: prohibition against hate speech, slan-
der, prohibition against blasphemy, the obligation of confidentiality and security
of the state.
The general opinion is that Section 77 contains a protection of formal freedom
of expression, including a prohibition against prior restraint. The provision does
not protect substantive freedom of expression, that is to say the content of the
expressions. However, the section is considered a fundamental value or princi-
ple guiding the legal interpretation unless other important considerations indi-
cate otherwise. Section 77 should be interpreted in the light of ECHR Article 10,
that is, prescribed by law and deemed necessary in a democratic society and
hence providing substantive protection of freedom of expression. Freedom of
expression is primarily considered a guiding principle and the section is rarely
251
directly invoked in courts or used in argument in public debate. However, this
guiding principle has a significant impact on the application of, for instance,
criminal provisions limiting the freedom of expression.
Other relevant provisions include Section 70 of the Danish Constitution, which
provides that no person shall be denied the right to full enjoyment of civil and
political rights by reason of his creed or descent; nor shall he for such reasons
evade any common civil duty.
There exists no explicit clause on freedom of speech in these two provisions. But
explicit considerations regarding the wording and interpretation of especially
section 266.b, but also Section 140 have been done in the explanatory notes.
4.a. Having European history and the period of the Enlightenment in mind, it
is important to differentiate between minority protection and the question of the
necessity to have a prohibition in the Criminal Code against blasphemy.
Incitement to religious hatred, intolerance and discrimination, should be prohib-
ited, but this should not lead to less criticism of religious doctrines. In a liberal
democracy it should not be necessary to have this prohibition in a Criminal
Code.
4.b. In the wording of the Danish provision, Section 266.b goes beyond what
is required in accordance with international obligations in regard to protec-
tion from incitement to religious hatred, and one should be very careful not to
Blasphemy, insult and hatred

prohibit or severely limit a necessary discussion in relation to how a religion


should fit in a modern secular society.

However, the most vulnerable group at the moment is the Muslim minority, which
is very exposed in the public debate and in general as mentioned in the ECRI
Report on Denmark, Recommendation No. 89. Special initiatives should be
introduced to help this minority to integrate successfully, but special accommo-
dation in the Criminal Code and in restricting fundamental rights should not be
among them. Single cases have shown that religion, without a firm reference to
a religious group of people, is also covered by Section 266.b. Again, widening
the scope would be problematic in accordance with the arguments raised under
4a. On the other hand there is a risk of a strategy of evasion by a perpetrator
by attacking the religion rather than the religious group. Therefore, cases should
be liable to the utmost scrutiny of the motives of the alleged perpetrator and a
very circumstantial assessment by the courts and prosecutors, leaving room for
critique of religious doctrines and practices.

4.c. According to the CERD Committees latest Concluding Observations on


Denmark, the state party should increase its efforts to prevent racially motivated
offences and hate speech, and to ensure that relevant criminal law provisions
are effectively implemented. Furthermore, it was requested that the state party
remind public prosecutors and members of the prosecution service of the gen-
252
eral importance of prosecuting racist acts, including minor offences committed
with racist motives, since any racially motivated offence undermines social cohe-
sion and society as a whole.184

These recommendations indicate that it is actually more the effective imple-


mentation, rather than new provisions, that is required. One could mention
two aspects, namely the size of the fines for violating Section 266.b, that could
be more significant. Also, the public prosecutor could initiate more proceedings
in relation to the provision, the awareness by the Director of Public Prosecutions
could lead to a uniform application of the provision, and the obligation to submit
information on discontinued cases is a step in the right direction.

Finally one could echo the CERD Committee in M. Gelle v. Denmark:

[That] statements were made in the context of a political debate does not absolve
the State party from its obligation to investigate whether or not her statements
amounted to racial discrimination. It reiterates that the exercise of the right to free-
dom of expression carries special duties and responsibilities, in particular the obli-
gation not to disseminate racist ideas.

4.d. Other grounds of discrimination could be included in Section 266.b, but


this is at the moment not perceived to be necessary. One could also wish for
a more fundamental debate on whether religion, which at the moment is often

184. CERD/C/DEN/CO/17.
Appendices

linked to ethnicity, should rather be perceived to some extent as similar to having


a certain political opinion.

4.e. According to the explanatory notes to Section 266.b, it is not the intention
that scientific theories on racial, national or ethnic differences should fall within
the scope of the offences described in Section 266.b of the Criminal Code; and
statements not made in an actual scientific context but which otherwise form part
of a serious debate should, according to the circumstances, be exempted from
punishment.

Furthermore, Holocaust denial is not as such prohibited in Denmark. The ECRI in


the latest report on Denmark has indicated that it regretted that Holocaust denial
and revisionism are not crimes in Denmark and urged the Danish Government
to forbid the public denial, trivialisation, justification or condoning of Holocaust
denial and revisionism as well as the production, publication and dissemination
of Nazi memorabilia and revisionism material, as recommended in its General
Policy No. 9 on the fight against anti-Semitism (Recommendation Nos. 85 and
86 in the ECRIs third report on Denmark, published in May 2006).

In the opinion of the author, criminalising such statements would obviously limit
freedom of expression and would in a Danish context not be the proper way to
combat anti-Semitism. The success of a prohibition is also a highly doubtful way
of dealing with the problem, since Holocaust deniers in Denmark are already a 253
marginalised group. Rather it is important that students and others are aware of
the history, for example, by maintaining Auschwitz Day on 27 January.185

5. Please see above on the authority of initiating proceeding. The case law
regarding the prohibition of blasphemy is very limited. Since the adoption of the
Criminal Code of 1930, there have been only three indictments and two convic-
tions, namely:

UfR 1938.419 (1938) Four men were convicted of the publication of anti-
Jewish posters. This would probably today be assessed to be a violation of Sec-
tion 266.b on hate speech, rather than a violation of Section 140.

J.nr. 824/46 (1946) A person was convicted of blasphemy because during


a masquerade he was dressed as a priest and he and his spouse performed a
baptism of a doll.

Gladsaxe Criminal Court (1971) Two persons employed by the Danish


National Broadcasting Company were indicted for the broadcasting of a song
with alleged blasphemous content. They were acquitted, since the court found
the song to be a contribution to the debate on the religious views of the sexual-
ity of women.

185. Further information is available at www.diis.dk/sw12806.asp and www.folkedrab.dk/.


Blasphemy, insult and hatred

The Director of Public Prosecutions has also in various cases decided and
rejected criminal proceedings, especially on the depicting of Christ in films and
paintings.

The case law is significantly larger when it comes to Section 266.b on hate
speech.
From 1 January 2001 to 31 December 2003, the Danish courts considered 23
cases of violation of Section 266.b of the Danish Criminal Code, which prohibits
the dissemination of racist statements and racist propaganda. In some of the cases
more than one person was indicted. In one case, the court acquitted the person
indicted and in another case the court acquitted one of the two persons indicted. In
the remaining 21 cases, the courts convicted all the persons indicted.

As to the manner in which the statements/propaganda were disseminated,


four cases concerned private persons shouting at someone in a public place like
the street, a shop or a bus; seven cases concerned statements published on the Inter-
net; two cases concerned statements published as advertisements; and two cases
concerned statements expressed at political party conferences. In three cases, the
statements were given to the press during interviews or sent to the press as a press
release. In three further cases, the statements were sent by e-mail or by ordinary mail
to a number of politicians. As to the persons expressing these statements, 10 cases
concerned statements/propaganda from politicians (one of whom was acquitted)
and one case concerned a spokesperson for a religious movement, whereas the
254
majority of the rest concerned statements expressed by private persons.

The public prosecution service decided to withdraw charges for violation of Sec-
tion 266.b of the Criminal Code in six cases in 2001, seven cases in 2002 and
six cases in 2003 pursuant to Section 721 of the Administration of Justice Act, inter
alia because of lack of evidence.186

Two convictions in relation to religion and Section 266.b can be found cf.
U.2002.2575 and U.2002.1947 , where the expression is to a larger
extent aimed at the religion rather than the religious group as such.

6. Not as such. In a Danish context, it is a matter of either Section 140 on blas-


phemy or Section 266.b on hate speech against a certain group of people, or
the prohibition of defamation as stipulated in Section 267 in the Criminal Code.

The prevailing opinion seems to be an acknowledgement of a differentiation


between protection of vulnerable groups of people, which to a significantly
larger extent should be protected, vis--vis the protection of religious dogmas,
which should endure criticism, almost without limits. Generally, religious insult is
not a term which is used in a Danish context, where the focus is on the protection
of tangible interest and not feelings, dogmas or ideas.

A practical issue is, however, that it is possible indirectly to harass minorities by


aiming the criticism at the religion and not at the people. By making a concrete

186. Sixteenth and Seventeenth Periodic Report on Denmark concerning the International Convention
on the Elimination of All Forms of Racial Discrimination, June 2005.
Appendices

assessment of the motives as seen in the two convictions in relation to Sec-


tion 266.b, this issue can be limited.
7. In relation to mens rea, the alleged perpetrator must have an intention to
publish or disseminate to a wider circle the statements, that is, he or she must
be aware that a journalist is recording or quoting his or her statements. He must
have intent to all parts of the crime.
In relation of the content of the statement, that is, whether the statement is
severe enough to violate the provisions, the practice is more of an objective
assessment on whether the statement generally can be characterised as being
degrading. However, in relation to Section 266.b, in a recent publication187
from the Director of Public Prosecution it is recommended that the person who
has expressed himself in an alleged derogatory way should be questioned to
uncover the motives behind the expression,, unless the complaint is manifestly
ill-founded. This administrative change of procedure was due to the opinion of
the CERD Committee Communication No. 34/2004, Mohammed Hassan Gelle
v. Denmark.
8. According to the Danish Act on the Administration of Justice, the police refer-
ring to Section 749, subsection 2 of the Administration of Justice Act can decide
to discontinue an investigation. According to this provision it may be decided to
discontinue an investigation, if there is no reasonable suspicion that a criminal
offence indictable by the state has been committed.188 255

Prosecuting authority: According to Section 719, subsection 2, No. 3 in the Act


on the Administration of Justice, offences committed in relation to (for example)
sections 140 and 266.b are liable to public prosecution only (by the regional
public prosecutor). This is an exception from the normal rule, where it is the
Chief of Police that decides whether to initiate proceedings. The reason behind
this specific authority is the consideration of the importance of these cases in
relation to civil liberties in the Danish constitution.
The Director of Public Prosecutions in September 1995 stipulated that he must
be notified of all violations of Section 266.b of the Criminal Code that are dis-
missed by the police on the grounds that no offence is assumed to have been

187. Director of Public Prosecutions, Meddelelse No. 9/2006 of 14 December 2006.


188. See also Section 721.1 of the Administration of Justice Act, which provides: Charges in a case
may be withdrawn in full or in part in cases: (i) where the charge has proved groundless; (ii) where
further prosecution cannot anyway be expected to lead to conviction of the suspect; or (iii) where
completion of the case will entail difficulties, costs or trial periods which are not commensurate with
the significance of the case and with the punishment, the imposition of which can be expected in case
of conviction. Section 722.1.iv of the Administration of Justice Act provides that: Prosecution in a
case may be waived in full or in part in cases where Section 89 of the Criminal Code is applicable
when it is deemed that no punishment or only an insignificant punishment would be imposed and that
conviction would not otherwise be of essential importance. Section 89 provides: Where a person
already sentenced [for another offence] is found guilty of another criminal offence committed prior to
the judgment, an additional sentence must be imposed provided that simultaneous adjudication would
have resulted in a more severe sentence.
Blasphemy, insult and hatred

committed. It is further stipulated that all cases in which a charge has been made
must be submitted to the Director of Public Prosecution together with a recom-
mendation on the question of prosecution.

With the aim of achieving a uniform application of Section 266.b the Director
of Public Prosecutions in December 2006 stipulated that all cases on complaints
and investigations are initiated in relation to Section 266.b, should be submitted
to the Regional Prosecutor, before a case is closed. Cases where a charge has
been raised should still be submitted to the Director of Public Prosecution.

In relation to Section 266.b the police have full (however, see above) discretion
whether or not to open criminal proceedings, subject to appeal to the Regional
Public Prosecutor, whose decision is final and cannot be appealed against to
another administrative authority (cf. Section 101 of the Act on the Administra-
tion of Justice).189 The Regional Public Prosecutor can request the Police Chief to
carry out further investigations

The public prosecutors supervise the processing of criminal cases by the chiefs
of police and hear complaints of decisions made by the chiefs of police concern-
ing prosecution. The decision is final and cannot be appealed against in the
administrative system (cf. Section 101.2, second sentence, of the Administration
of Justice Act).190
256
The Director of Public Prosecutions hears appeals against decisions made by the
public prosecutors as first instance. A decision made in an appeal by the Direc-
tor of Public Prosecutions cannot be appealed against to the Minister of Justice
(cf. Section 99.3 of the Administration of Justice Act).

According to the Act on the Administration of Justice, Section 98, the Minister
of Justice acts as the superior and supervises the public prosecutors and can (cf.
subsection 3) order the prosecutor in a specific case to initiate, continue, omit
or stop prosecution.191 The instruction has to be in writing, stating the reasoning
for the decision. Furthermore, the Chairperson of Parliament has to be informed
(this safeguard was introduced in 2005). The potential political interference in
prosecution and in specific cases has rightly been criticised by legal scholars;
however the actual use of the provision is very limited.

189. Section 101, paragraph 2, of the Administration of Justice Act reads, in pertinent parts: The
decisions of the Regional Public Prosecutors on appeals cannot be appealed to the Director of Public
Prosecutions or to the Minister of Justice.
190. Section 101, paragraph 2, of the Administration of Justice Act reads, in pertinent parts: The
decisions of the Regional Public Prosecutors on appeals cannot be appealed to the Director of Public
Prosecutions or to the Minister of Justice.
191. Section 98 of the Administration of Justice Act reads, in pertinent parts: The Minister of Justice
is the superior of the public prosecutors and supervises these. (2) The Minister of Justice may lay down
conditions governing the execution of the work of the public prosecutors. (3) The Minister of Justice
may issue orders to public prosecutors concerning the processing of specific cases, including whether
to commence or continue, refrain from or end prosecution. (4) The Minister of Justice hears appeals
of decisions made by the Director of Public Prosecutions as first instance.
Appendices

Section 63 of the Danish Constitution enables decisions of administrative author-


ities, including the Director of Public Prosecutions and the Ministry of Justice, to
be reviewed as to their lawfulness before the courts. A person can apply to the
courts for a review of whether the Director of Public Prosecutions view of the
scope of Section 266.b.1 or of the Ministrys view of his standing is correct.

Obviously there exist complaints mechanisms at the European Court of Human


Rights and the individual complaint system in the UN Committee system.
There have been several cases before the UN CERD committees on the Dan-
ish approach and administrative tradition of being somewhat restrained about
initiating proceedings in relation to Section 266.b.1,192 and the alleged lack of
effective action and investigation of racial discrimination. The reasoning behind
this interpretation can be summed up by the following quotation from the deci-
sion by the Regional Public Prosecutor who, on 18 November 2004, upheld the
decision of the Copenhagen police in a case which later was decided upon at
the UN CERD Committee:

Although the statements are general and very sharp and may offend or outrage
some people, I have considered it essential that the statements were made as
part of a political debate, which, as a matter of principle, affords quite wide limits
for the use of unilateral statements in support of a particular political view. Accord-
ing to the preliminary work on section 266.b of the Criminal Code, it was par-
ticularly intended not to lay down narrow limits on the topics that can become the
257
subject of political debate, or on the way the topics are dealt with in detail.193

9. If the public is entitled to take proceedings and if it is suspected that a crime


has been committed, for example in cases described in the media, the police
can on their own initiative start investigations (cf. the Act on the Administration
of Justice, Section 742, subsection 2). Section 275, paragraph 1, of the Crimi-
nal Code reads: The offences contained in this Part shall be subject to private
prosecution, except for the offences referred to in sections 266.b.

If prosecution under Section 266.b.1 of the Criminal Code has not been pur-
sued, a private prosecution under Section 267 of the Criminal Code (7) protect-
ing personal honour is available.194 The plaintiff must in such a case convince
the court that he has an essential, direct and individual interest in the case to
be considered as an injured party. This criterion can be somewhat difficult if the
alleged violation is abstract, or the target aimed at is the group or the religion.

192. This was acknowledged in the explanatory notes to the Act amending the Criminal Code in
1995 (No. 3009 of 17 May 1995), introducing Section 266.b.2 on propaganda, recommending
the prosecutor to show less restraint in severe cases.
193. Communication No. 34/2004, submitted by Mohammed Hassan Gelle to the UN CERD
Committee.
194. Section 267, paragraph 1, of the Criminal Code reads: Any person who violates the personal
honour of another [person] by offensive words or conduct or by making or spreading allegations of
an act likely to disparage him in the esteem of his fellow citizens, shall be liable to a fine or to impris-
onment for any term not exceeding four months.
Blasphemy, insult and hatred

10. In the case of the twelve cartoons published in a Danish newspaper, the
above-mentioned approach according to Section 267 of the Criminal Code pro-
tecting personal honour was tried in Aarhus district court, where various Muslim
organisations sued the editors for violation of Section 267. According to the
judgment some of the plaintiffs could not be considered injured parties, since
the founding documents of some associations were not submitted; hence it could
not be assessed whether they had a real legal interest in the case. For the other
organisations, the court concluded that the motive behind the publication could
not be assessed as being aimed at degrading Muslims in the public eye. The
editors were acquitted.195
Sections 140 and 266.b of the Criminal Code were also invoked. Jyllands
Posten printed the twelve cartoons of the Muslim prophet Muhammad on 30 Sep-
tember 2005. According to the newspaper, the aim of the publication was to
raise debate about a growing self-censorship in Denmark and abroad, which,
according to the newspaper, threatens freedom of expression. The publication
of the drawings was perceived as offensive by the Danish Muslim community
and occasioned response not only in Denmark among Muslims but also in the
rest of the world. The newspaper was reported to the district attorney for having
violated provisions in the Criminal Code 266.b regarding hate speech and pro-
vision 140 regarding blasphemy.
258 The Regional Public Prosecutor did not find that there was a reasonable suspi-
cion that a criminal offence indictable by the state had been committed. In his
decision the Regional Public Prosecutor stated that he attached importance to
the fact that the article in question concerns a subject of public interest, which
means that there is an extended access to make statements without these state-
ments constituting a criminal offence. Furthermore, according to Danish case
law, journalists have extended editorial freedom when it comes to subjects of
public interest. For these reasons the Regional Public Prosecutor did not find a
basis for concluding that the content of the article constituted an offence under
Section 140 or Section 266.b of the Criminal Code.
The Regional Public Prosecutor stated that, when assessing what constitutes an
offence under sections 140 and 266.b, the right to freedom of speech must be
taken into consideration and the right to freedom of speech must be exercised
with the necessary respect for other human rights, including the right to protec-
tion against discrimination, insult and degradation.196
The Director of Public Prosecutions concluded on 15 March 2006 that there
was no basis for instituting criminal proceedings and therefore rejected the com-

195. Aarhus District Court Judgment BS 5-851/2006. October 26; 2006.


196. Copenhagen 23 January 2006, Response by the Danish Government to letter of 24 Novem-
ber 2005 from UN Special Rapporteur on Freedom of Religion or Belief, Ms Asma Jahangir, and
UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and
Related Intolerance, Mr Doudou Dine, regarding cartoons representing the Prophet Muhammad
published in a newspaper.
Appendices

plaints. The Director of Public Prosecutions did not find any basis for changing
the decision made by the Regional Public Prosecutor and therefore concurred in
the decision and stated, in relation to Section 140:

Also taking into account that, according to the legislative material and prece-
dents, section 140 of the Danish Criminal Code is to be interpreted narrowly, the
affront and insult to the Prophet Muhammed, which the drawing may be under-
stood to be, cannot accordingly with the necessary certainty be assumed to be
a punishable offence under section 140 of the Danish Criminal Code.

In the same decision, the Director of Public Prosecutions stated in relation to Sec-
tion 266.b:

The text section of the article does not refer to Muslims in general, but mentions
expressly some Muslims, i.e. Muslims who reject the modern, secular society
and demand a special position in relation to their own religious feelings. The latter
group of people must be considered to be comprised by the expression a group
of people as mentioned in section 266.b, but the text in the article cannot be con-
sidered to be scornful or degrading towards this group even if seen in the context
of the drawings.

() [A]ccording to the heading, the drawings in the article depict Muhammad.


The drawings that must be assumed to be pictures of Muhammad depict a religious
figure, and none of them can be considered to be meant to refer to Muslims in gen-
259
eral. Furthermore, there is no basis for assuming that the intention of drawing 2 [the
face of a grim-looking bearded man with a turban shaped like an ignited bomb]
was to depict Muslims in general as perpetrators of violence or even as terrorists.

The drawings depicting persons other than Muhammad do not contain any general
references to Muslims. Furthermore, the depiction of Muslims in these drawings is
not scornful or degrading. Not even when the drawings are seen together with the
text section of the article is there any basis to assume that the drawings make state-
ments referring to Muslims in general. Accordingly, the Director of Public Prosecu-
tions does not find that in the case of the article The Face of Mohammed there
has been any violation of section 266.b of the Danish Criminal Code. Based on this
the Director of Public Prosecutions also concurs in the decision to discontinue the
investigation with regard to violation of section 266.b of the Danish Criminal Code.

Finally it was stated that:

Although there is no basis for instituting criminal proceedings in this case, it should
be noted that both provisions of the Danish Criminal Code and also other penal
provisions, e.g. about defamation of character contain a restriction of the free-
dom of expression. Section 140 of the Danish Criminal Code protects religious
feelings against mockery and scorn and section 266.b protects groups of persons
against scorn and degradation on account of their religion. To the extent publicly
made expressions fall within the scope of these rules there is, therefore, no free and
unrestricted right to express opinions about religious subjects. It is thus not a correct
description of existing law when the article in Jyllands-Posten states that it is incom-
patible with the right to freedom of expression to demand special consideration for
Blasphemy, insult and hatred

religious feelings and that one has to be ready to put up with scorn, mockery and
ridicule.197

In an appendix to the actual decision there is an assessment of the historical


legal traditions and legal interpretation, as well as reference to the following
case law from the European Court of Human Rights on freedom of expression
and religious feelings: I.A v Turkey, judgment of 13 September 2005; Wingrove
v. the United Kingdom, judgment of 25 November 1996 and Otto-Preminger-
Institute v. Austria, judgment of 20 September 1994.

11. Generally the media do not restrain themselves in the coverage of signifi-
cant news events. For example, all of the cartoons in the above-mentioned case
have been re-published in other newspapers and media, typically not as an act
of support but rather as part of the news coverage. However, there has generally
not been an agreement on the wisdom of the original publication and during
the last year there has been an extensive public debate on freedom of speech,
minority rights and the scope of freedom of religion.

In relation to ordinary coverage of crime-related news, some newspapers abide


more strictly by the press ethical rules than others. The rules of the Danish Press
Council, Press Ethical Rules, National Code of Conduct on Court Reporting, stip-
ulate that the mention of persons family history, occupation, race, nationality,
260
creed or membership of organisations should be avoided unless this has some-
thing directly to do with the case.

In criminal cases against journalists and editors, the courts have made a specific
assessment of the purpose of reproducing racist statements, including whether
the protection of persons who are exposed to gross contempt by the statements
reproduced is stronger than the need for conveying the statements to the pub-
lic. However, the European Court of Human Rights judgment of 23 Septem-
ber 1994 in the case Jersild v. Denmark made a significant impact in Denmark
and in the countrys jurisprudence. It is now generally accepted that the press
enjoys a wide freedom of expression when reproducing racist statements, given
its role as a public watchdog.

France198

1. France does not have any specific legislation in this area. In respect of
eight criminal offences, however, religion is a factor that establishes a generic
offence on the same basis as other grounds of discrimination, such as origin,
ethnic group and race.

197. File No. RA-2006-41-0151, 15 March 2006: Decision on possible criminal proceedings in
the case of the Jyllands-Posten article The face of Muhammed at: www.rigsadvokaten.dk/media/
bilag/afgorelse_engelsk.pdf.
198. Reply by Mr Yves Charpenel, Solicitor General at the Court of Cassation.
Appendices

Inciting discrimination, in private, on Petty offence R 625-7.1


grounds of origin, ethnic group, nation- Criminal Code
ality, race or religion
Discriminating on grounds of religion in Misdemeanour Article 225-1,4
respect of the supply or provision of a Criminal Code
good or service
Publicly insulting an individual on Misdemeanour Sections 23, 29,
account of his or her race, religion or 33
origin Act of
29 July 1881
Defaming an individual on account of his Misdemeanour Sections 23, 32,
or her race or religion 42
Act of 29 July
1881
Violence on grounds of religion, not Misdemeanour Article 222-13
causing unfitness for work Criminal Code
Violence on grounds of religion, causing Misdemeanour Article 222-12
unfitness for work Criminal Code
Desecrating a grave and interfering with Misdemeanour Article 225-18
a corpse on grounds of race, religion, Criminal Code
261
ethnic group or nationality
Publicly inciting discrimination, hatred Misdemeanour Section 24
or violence on grounds of race, religion, Act of
ethnic group or nationality 29 July 1881

Two courts of appeal, those of Colmar and Metz (Alsace and Moselle), have
special legislation deriving from the German Criminal Code of 1871, the valid-
ity of which was endorsed by an Act of 17 October 1919 and a decree of
25 November 1919, under which public blasphemy against God is an
offence (Article 166).

The comprehensive database held by the national criminal records office con-
tains no trace of any convictions on this count; it may be said to be a local his-
torical relic without practical effect. The Court of Cassation has acknowledged
its applicability (FROMM judgment of 30 November 1999) to the two courts in
question by endorsing a conviction based on Article 167, under which interfer-
ence with freedom of religion is an offence.

1a. The offence of blasphemy disappeared from French positive law in 1791.
Reintroducing it would conflict with the provisions of the Separation of Church
and State Act of 9 December 1905, which enshrined in France the secular prin-
ciple, deriving from the constitutional principle of freedom of conscience, which
Blasphemy, insult and hatred

has been part of our law since the Declaration of the Rights of Man and of the
Citizen of 26 August 1789 (articles 10 and 11).
The fact that Alsace and Moselle retain a relic of a specific law inherited from
the German period (1871-1918) does not seem to give rise to much debate at
national level in this respect.
1.b. Legal writers all agree on the need to maintain the separation between
church and state, given that secularism remains a founding principle of the
French Republic; see Article 1 of the 1958 Constitution:
France shall be an indivisible, secular, democratic and social Republic. It shall
ensure the equality of all citizens before the law, without distinction of origin, race
or religion. It shall respect all beliefs.

For its part, in a decision of 31 May 2000, the Conseil dEtat laid down condi-
tions for recognising religious associations:
their sole purpose must be to practise a religion;
all their activities must be related to that purpose;
they must not be involved in activities that might interfere with public order.
1.c. The establishment of the Equal Opportunities and Anti-Discrimination Com-
262 mission (HALDE) in 2005, under the Act of 30 December 2004, reinforced this
traditional approach, which reflects a consensus on the necessary relationship
between equality, secularism and freedom of conscience.
2. An Act of 1 July 1972 inserted a provision into the general Freedom of the
Press Act of 29 July 1881, prohibiting incitement to hatred or violence towards
a person or a group of people on account of their origin or their membership or
non-membership of a particular ethnic group, nation, race or religion (Section 24
of the 1881 Act). Here, too, religion is just one of the elements establishing
the general offence of discrimination. In respect of discrimination, defamation,
insults and violence, French positive law establishes a general offence that may
be aggravated by specific circumstances, of which religion is just one example.
As in respect of the first question, the existence of offences involving religion is
meaningful only in the context of the exercise of freedom of conscience: both
the legislature and the courts are guided by the need to balance the primacy of
secularism with freedom of conscience; what is prohibited is not attacks on reli-
gion as such, but rather the hurtful, intolerable impact that religious criticism can
have on others by interfering with their freedom of conscience, within the limits
of freedom of expression.
The principle that has been established for two centuries is that of general legis-
lation subject to strict interpretation by the courts; specific laws, including those
that broaden the scope of discrimination, simply afford updated indications of
individual or collective interests which, for historical and sociological reasons,
Appendices

warrant particular vigilance in the light of the continual reaffirmation of the need
to safeguard freedom of expression.
Successive amendments to the Press Act, which contains the bulk of the provi-
sions pertaining to religion, were consequently incorporated in the wake of
topical events that had had a significant public impact, such as targeted profa-
nation of graves or violence against representatives of a specific community.
3. Criminal law does not contain any specific references to a constitutionally
guaranteed principle that systematically guides the judgments handed down
in such cases: the principle is that of freedom; the exception to it is the prohibi-
tion of discriminatory, insulting or defamatory behaviour or expression; accord-
ingly, in order to make a conviction, the case law requires an extremely detailed
charge sheet, and restricts the right to bring a prosecution to a very short limita-
tion period of three months (compared with three years for ordinary offences)
where such offences are committed through the press.
Under the Court of Cassations supervision, judges are instructed to examine
the evidence in each case in the light of the principle that the prohibition is sub-
sidiary to freedom of expression. This approach was endorsed by the Act of
15 June 2000, which inserted a preliminary article at the start of the Code of
Criminal Procedure, recalling the primacy of the principles guaranteed by the
European Convention on Human Rights.
263
4.a. A private members bill on the trivialisation of blasphemy in cartoons,
tabled by an MP in 2006, was not passed; both legal writers and representa-
tives of most denominations appear to agree that the current balance estab-
lished by law and its application by the courts suffice to prevent the proliferation
of incidents involving religious criticism.
4.b-d. The above offences attract a similar response; they have all been
addressed by means of specific legislative amendments, the courts approach to
which always generates interest (see, for example, the proceedings under way
in Paris concerning the cartoons of Muhammad), but without any objections
being raised in respect of legislation that is regularly applied, thereby giving rise
to judgments that are made public. The courts long-standing, flexible practice
in relation to the law on the press, which covers most offences pertaining to reli-
gion, contributes to the general climate of confidence in this legal approach to
what is an extremely sensitive issue impinging on freedom of thought, in which
the courts role is paramount.
4.e. The prohibition of negationism was inserted into the French Criminal
Code under the Act of 13 July 1990 (Article 24bis of the Act of 29 July 1881)
with reference to Article 6 of the Charter of the International Military Tribunal
appended to the London Agreement of 8 August 1945.
The passing of the Recognition of the Armenian Genocide Act sparked a debate
on the possibility of extending the offence of negationism to include that
Blasphemy, insult and hatred

genocide, but Parliament has not taken any action to date. With the exception
of this idea of broadening the concept of negationism to include all forms of
genocide, the existing legislation is not being challenged to any great extent.

5. There are naturally no established precedents in respect of blasphemy, since


it is not an offence under criminal law.

It is impossible to distinguish offences involving religious insults or defamation,


or incitement to religious hatred, from the generic offence (see above). Convic-
tion statistics do not include a separate total for the religious ground, which is
bundled together with the grounds of origin, race, ethnic group and nationality.
Nevertheless, figures for the offences of discriminatory insults and defamation
and incitement to hatred show that they are prosecuted and do result in con-
victions. The table gives the latest available figures from the Justice Ministrys
database.

2004 2005
Offence prosecuted convictions convictions
Violence on religious grounds 3 3
Discriminatory defamation (including on
264 religious grounds) 3 8
Discriminatory insults (including on religious
grounds) 162 193
Inciting discrimination (including on reli-
gious grounds) 16 53
Discrimination (including on religious
grounds) 6 6
Inciting hatred during sporting events 2 3
Negationism 1 1

6. Aside from the fact that blasphemy is not an offence and that insults, defa-
mation, incitement and discrimination on religious grounds are meaningful only
in the context of the generic offence to which they pertain, on the same basis
as the concepts of race, ethnic group, origin and nationality, the distinctions
established under criminal law between different forms of discrimination have
at least two advantages. Firstly, they make it easier to identify various situations
and types of infringement and thus to fulfil the requirement that the application
of the law be tailored to individual circumstances, by clarifying its relationship
to the legitimate interests harmed and thus enhancing public understanding of
the ensuing exceptions to freedom of expression. Secondly, they require more
precision from judges when they charge suspects with the offences in ques-
tion, thereby affording an additional motivation to give reasons for decisions to
Appendices

convict, which is consistent with the principle that the prohibition is subsidiary to
freedom of expression.

Through, inter alia, the various publications aimed at law students, prevailing
opinion emphasises the legitimacy of specific legislation dealing with what
amounts to abuses of freedom of expression. It notes that the establishment of
the generic offence (insults, defamation, incitement or discrimination), in accord-
ance with the normal rules for assessing whether the constituent elements have
been established in each case, must be subject to the greatest possible scrutiny,
and that aggravating circumstances (such as religious or racial grounds) must be
assessed only once the general offence has already been established (see Juris-
Classeur Periodique (JCP) 1998, Vol. 70; JCP 2005, Vol. 110; Eerera Gazette
du Palais, 1995, No. 697; and Lesclous and Marsal, Droit Pnal, 1998, Chron-
icles 21 and 23).

Legal writers regularly recall that, particularly in respect of legislation restricting


freedom of expression, the rule of law requires that the latter may be limited only
by an explicit legal provision (see Burgelin submission, Dalloz, 1998, p. 154;
Rgis de Gouttes, Gazette du Palais, Doctrine Spcial Droits de lHomme, com-
munication of 23 May 2000; Thierry Massis, Dalloz, 1992, p. 113, La libert
de conscience, le sentiment religieux et le droit pnal).

7. Since the overall reform of the French Criminal Code in 1994, the element
265
of intent has had to be established in respect of all offences (Article 121-3 of
the Criminal Code). This means that the court must establish its existence before
it can find a suspect guilty. Intent is often inferred from the circumstances of the
case, but the decision must still demonstrate it.

With regard to the foreseeability of the effects of the offences in question, it


depends whether they are committed in public (including by electronic means),
in which case they attract a more severe penalty on the grounds that the damage
to the victims legitimate interests is disseminated more widely.

Simply establishing that the offence was committed suffices to make it punish-
able, without any need to establish that specific damage was actually caused:
a breach of the law may be found even where no complaint is lodged by an
individual victim.

8. It follows from the preceding principle that the prosecution of such offences
is not subject to a complaint being lodged by a victim able to demonstrate a
direct personal interest. Such offences are therefore subject to the general princi-
ple governing French criminal procedure, which allows the public prosecutor to
prosecute any breach of criminal law proprio motu.

This is the meaning of articles 31 et seq. of the Code of Criminal Procedure,


and Article 40-1 in particular, which deals with the expediency of prosecution,
that is, the scope for the public prosecutor to decide whether or not to prosecute
Blasphemy, insult and hatred

breaches that come to his or her notice. This freedom is subject to a number of
conditions:
Should the public prosecutor decide not to prosecute, he or she must
notify the victims and the persons targeted, where the latter are identified
(Article 40-2);
The person having reported the offence may appeal against a decision
to refrain from prosecuting (Article 40-3). Such appeals are lodged with
the Attorney-General, who may decide to order the public prosecutor to
prosecute;
The public prosecutor may opt for an alternative to prosecution or non-
prosecution (Article 41-2), such as penal mediation, a penal arrange-
ment or reparation measures;
He or she may receive written instructions, which go on file, from his or her
immediate superior (the Attorney-General) to prosecute, but not to refrain
from prosecuting (Article 36);
The Attorney-General may take action proprio motu on the instructions of
the Minister of Justice (Article 30) or in response to an appeal lodged by
the complainant;
266 The victim may bring criminal proceedings in his or her own right (Art-
icle 1.2), either by lodging an application for damages with the investigat-
ing judge (Article 85) or by bringing a private prosecution before the court
(Article 392).
Accordingly, such offences are not prosecuted solely at the public prosecutors
discretion: where the public prosecutor decides not to take any action, the victim
can either bring a prosecution proprio motu or challenge that decision before
the prosecutors immediate superior.
9. See above: criminal offences, particularly those with religious overtones,
are normally subject to the principle of expediency of prosecution available to
the public prosecutor; the principle is therefore that the prosecuting authorities
are free to prosecute or to refrain from prosecuting, irrespective of the victims
attitude.
This follows from the rules governing public prosecutors offices, which are
responsible for upholding the public interest (within the meaning of Recommen-
dation Rec(2000)19 of the Committee of Ministers of the Council of Europe)
rather than individual interests. Only in a few exceptional cases does the law
make prosecution subject to the lodging of a complaint; these are explicitly and
exhaustively stipulated by law, for instance in the customs and taxation fields.
With regard to the press, the specific status of the persons or institutions con-
cerned gives rise to a number of exceptions under Section 48 of the 1881 Act,
where the insults or defamation in question are directed at a corporate body,
Appendices

a court, a member of parliament, a public officer, a juror, a witness, a head of


state or a foreign diplomat. In such cases, the prosecution is valid only if a com-
plaint is first lodged, or the offence explicitly reported, by the person or institu-
tion concerned. On the other hand, it should be noted that where an individual
is defamed on account of his or her religion, inter alia, the prosecuting authori-
ties can prosecute proprio motu. The principle is therefore that offences involving
religious discrimination are not subject to the lodging of a complaint.

Except where the impact or unusual nature of the breach in question requires
the prosecuting authorities to take action in order to uphold the public interest,
the application of the principle of expediency of prosecution often prompts the
public prosecutor to opt, at least in the case of general offences involving insults
or defamation against individuals, to leave it up to the latter to initiate a prosecu-
tion. On the other hand, where the offence involves one of the forms of discrimi-
nation specifically covered by law, the public prosecutor will generally initiate a
prosecution proprio motu.

By and large, this dual stance derives from general instructions on prosecution
policy, issued by the Ministry of Justice (see the table) and implemented by the
principal public prosecutors offices, aimed at encouraging public prosecutors to
tailor their procedural decisions to the seriousness of criminal offences.

Circular of Action against Racism and Xenophobia 267


16 July 1998
Circular of Judicial Responses to Urban Violence with Racist
13 October 2000 or Anti-Semitic Overtones
Circular of Judicial Responses to Urban Violence with Racist
2 March 2002 or Anti-Semitic Overtones
Circular of On Racist and Anti-Semitic Acts
18 April 2002
Memorandum of Evaluation of Measures to Test for Racial
June 2002 Discrimination
Circular on the Act of Establishment of Racism, Xenophobia and Anti-
3 February 2003 Semitism as Aggravating Circumstances
Fact sheet of Discrimination in the Workplace
May 2002
Circular of Judicial Responses to Anti-Semitic Acts
18 November 2003
Dispatch of Profanation of Graves
13 August 2004
Dispatch of Racist, Anti-Semitic and Xenophobic Acts
21 March 2003
Blasphemy, insult and hatred

Annual summary sheets Definitions of Anti-Semitic Acts


of April 2004
Guide to Criminal Provisions on Racism, Anti-
Semitism and Discrimination
Appointment of Referring Prosecutors in Principal
Public Prosecutors Offices

On several occasions in recent years, the growing number of offences involving


discrimination, including on religious grounds, has prompted the Minister of Jus-
tice to issue numerous instructions aimed at ensuring more consistent action by
the French Republics 35 principal public prosecutors and 182 public prosecu-
tors in respect of what is regarded as a sensitive issue, which brings into play
important democratic interests and strikes a deep chord with the public. Like-
wise, the annual report on prosecution policy, which is compiled at the local,
regional and national levels, includes a section on such offences, thereby afford-
ing an annual overview of both preventive and punitive policies (see dispatch of
21 December 2006 in relation to the compilation of the 2007 report).

10. Like other European countries, France regularly experiences such incidents,
which may involve sporting fixtures, desecration of graves, urban violence or the
publication of opinion pieces or cartoons.
268
The degree of public emotion is reflected in both the increasing number of spe-
cific legal provisions making the most unacceptable forms of such discrimination
an offence and the growing number of cases leading to a prosecution and/or a
conviction, although the latter account for just a tiny fraction of the cases brought
before the criminal courts each year: some 5 400 000 complaints and police
reports, resulting in 450 000 convictions. The fact remains that such offences
are systematically investigated. Thanks to the careful, targeted prosecution pol-
icy pursued by the prosecuting authorities, the mobilisation of victims, individu-
als and associations and the fact that the perpetrators are frequently identified,
the proportion of such cases on which no action is taken is estimated to be
considerably lower than for criminal offences in general (about 25% of those
cases in which prosecution is an option), while the ratio of acquittals to convic-
tions is estimated to be higher than for other offences, precisely because of the
greater need for particular formalities and the statement of specific facts in order
to outweigh the higher principle of freedom of expression. Moreover, it is sig-
nificant that neither the principal state prosecutors reports nor legal or media
commentators make any allusion to major trends in public opinion or waves of
appeals against court decisions pertaining to the prosecution or judgment of
such offences.

A significant recent example is the judgment handed down by the plenary Court
of Cassation on 16 February 2007 in response to a complaint from the Central
Consistory of the Union of Jewish Communities of France against the humorist
Appendices

Dieudonn, which noted that, while there could be free criticism of religion dur-
ing a debate of general interest, punishment of the statements complained of
(the Jews are a sect, a fraud) constituted a necessary restriction on freedom
of expression in a democratic society; in this case, the conviction was justified
solely on the ground of an intolerable attack on the honour and standing of a
group of people on account of their origin.

11. Court cases have traditionally attracted significant media coverage in


France, and are currently estimated to account for nearly 20% of prime-time
broadcasting.

Court cases with a religious dimension do not stand out against this general
background, although cases of religious intolerance are regularly given news
coverage as and when they occur. On the whole, media coverage of such cases
focuses on social, political and sociological issues rather than purely judicial
aspects.

Given that they feel strongly about respect for freedom of expression, quality
journalists working for major media outlets have little inclination to criticise a
judicial approach that clearly weighs the legitimacy of protecting religious inter-
ests against that of rejecting punishment of any attack on religious sensibilities.
269

The tempered attitude adopted by judges appears to be matched by relatively


tempered media coverage, in which one senses the same cautious resolve to
avoid fuelling an inherently heated debate on a subject that involves deeply-held
beliefs, between people who are extremely committed to those beliefs. Accord-
ingly, the idea that the media might step up their coverage in order to offset or
counter judicial inaction does not appear to reflect the current situation, at least
in the field covered by the questionnaire.

Greece199

1. Chapter 7 of the Greek Penal Code, entitled Plots against Religious Peace,
contains four articles. According to Article 198 on Malicious blasphemy:

1. One who publicly and maliciously and by any means blasphemes God shall be
punished by imprisonment for not more than two years.

2. Except for cases under paragraph 1, one who by blasphemy publicly manifests
a lack of respect for the divinity shall be punished by imprisonment for not more
than three months.

199. Reply by Mr Dimitris Christopoulos, Associate Professor, Department of Political Science and
History of the Panteion University.
Blasphemy, insult and hatred

According to Article 199 on Blasphemy concerning religions:

One who publicly and maliciously and by any means blasphemes the Greek Ortho-
dox Church or any other religion tolerable in Greece shall be punished by imprison-
ment for not more than two years.

According to Article 200 on Disturbance of a religious assembly:

1. One who maliciously attempts to obstruct or intentionally disrupts a religious


assembly for service or ceremony permitted under the Constitution shall be pun-
ished by imprisonment for not more than two years.

2. One who commits blasphemous, improper acts in a church or in a place devoted


to a religious assembly permitted under the Constitution shall be subject to the same
punishment.

According to Article 201:

One who wilfully removes a corpse, parts of a corpse or the ashes of the dead from
those who have lawful custody thereof, or one who commits an offence with respect
to a corpse or acts blasphemously and improperly toward a grave, shall be pun-
ished by imprisonment for not more than two years.

270 Chapter 7 of the Greek Penal Code is a rather obvious indication that the Greek
criminal order is a religionist one. The Greek legal order is marked by a very
high level of religious devotion, a result of the particular position of the Greek
Orthodox Church in the state, according to the Greek Constitution. Furthermore,
the solid historical links between Eastern Orthodox Christianity and the emer-
gence of the Greek nation are used to justify a high level of interference of the
Church in state affairs, at all levels. The very existence of Chapter 7 of the Greek
Penal Law can be seen as solid evidence of the integration of Orthodox religion
into the penal machinery. It should not be regarded as accidental, therefore, that
the Greek case law related to crimes contained in Chapter 7 of the Code is non-
existent when it comes to condemnation of blasphemous acts against any other
religion tolerable in Greece.

It should be noted finally that the target of punishing blasphemy in Greek penal
law is neither the protection of religious feeling nor the protection of social
peace, as is often alleged in parts of the legal doctrine. Article 198 of the Penal
Code does not refer to the victim of the insult nor to the religious convictions of
third parties witnessing a blasphemous act. The object of the penal interest here
is solely the concept or the existence of God, as a value per se deserving penal
protection regardless of the sacred beliefs of any individual. This rather peculiar
situation for penal law means that Gods protection by penal means is recog-
nised as an independent legal value, integrated in the states order, regardless
of the persons beliefs. The victim of the crime of blasphemy is not a specific
religion, an individual believer or a group of believers but the divine, as such.
Appendices

2. Article 192 of the Greek Penal Code reads as follows: One who publicly
and by any means causes or incites citizens to commit acts of violence upon
each other or to disturb the peace through disharmony among them shall be
punished by imprisonment for not more than two years unless a greater punish-
ment is imposed by another provision.

Furthermore, special criminal legislation L.927/1979 amended by Article 24


of L.1419/1984 punishes acts aiming at racial discrimination. According to
L.927:

Article 1.

1. One who publicly, orally or through the Press or written texts, pictures or by any
means intentionally incites to acts or actions potentially able to cause discrimina-
tion, hatred or violence against persons or groups of persons on the sole basis of
their racial or national origin shall be punished by imprisonment for not more than
two years or pecuniary penalty or both.

2. With the above-mentioned penalties is punished anyone who forms or partici-


pates in organisations that intend to organise propaganda or activities of any kind
aiming at racial discrimination.

Article 2.
271

One who publicly, orally or through the Press or written texts, pictures or by any
means, expresses insulting ideas against persons or groups of persons on the sole
basis of their racial or national origin, shall be punished by imprisonment for not
more than one year or pecuniary penalty or both.

Article 24 of L.1419/1984 adds the word religion next to racial or national


origin.

According to leading scholars of Greek penal law, the normative content of the
articles belonging in Chapter 6 on Plots against the public order (where Arti-
cle 192 belongs) of the Greek Penal Code was extensively used by the Greek
State immediately after the civil war (1946-49) against political dissidents. After
the fall of the dictatorship in 1974, they were used less and less.

The special anti-racist legislation of the late 1970s should be regarded as an


element of modernisation of Greek penal law, in line with other similar develop-
ments aiming to amplify the anti-racist legislative arsenal in western Europe and
combat anti-Semitic discourse.

3. There is no specific freedom-of-speech clause in the above-mentioned provi-


sions. Law 1419 has only been applied twice in its existence against actions
inciting to religious violence, whereas Article 192 has been rather inactive
Blasphemy, insult and hatred

since the 1980s. Case law applying Article 192 and punishing perpetrators is
generally perceived by the doctrine as a potential threat to the constitutionally
enshrined freedom of expression and Article 10 of the ECHR.
4. Although there are conflicting views in the doctrine of penal law, one could
give no as a general answer to this question. Very few scholars advocate the
need for additional legislation on negationism, especially in the light of the pro-
cedural and substantial developments in the crime of incitement to genocide
before the International Criminal Court. On the contrary, there is a tendency
towards abolition of the crime of blasphemy, as advocated by some senior schol-
ars of criminal law and parts of civil society.
5. Trials related to the crime of blasphemy are rather frequent in Greece. The
most famous among them have concerned public spectacles, works of art, films
and books that generally address the divine in a humiliating way in order to
provoke the publics sacred beliefs. In general, these cases become very popu-
lar: they create scandals and are followed intensively by the media and public
opinion. However, they have become rather exceptional in the new millennium
and occur less and less. Examples are M. Scorseses film The Last Temptation,
the novel Mv by M. Androulakis, Haderers comic The Life of Jesus Christ and a
painting by the Belgian painter Thierry de Cordier. On the contrary, the majority
of trials for blasphemy remain far from the public eye since they are not related
272 to works of art but to ordinary verbal insults to God, Christ or the Madonna, very
frequent in Greek daily life. In these cases, ordinary linguistic forms of modern
Greek are used to insult a specific individual by insulting his sacred beliefs. Most
of these anonymous trials lead to acquittal of the accused.
The procedural status of the victim(s) is the ordinary status that the Greek penal
procedure accords to any accused individual.
6. All cases of blasphemy that have been brought before the Greek judicial
authorities (articles 198 and 199 of the Penal Code) concern insults against
the Eastern Orthodox Christian religion whereas, as stressed above, the so-
called anti-racist legislation of 1979 has been applied twice against anti-Semitic
speech. Therefore, one could convincingly argue that the distinction in question
plays a role in the case law, since there has never been any incident in Greek
jurisprudence where the term blasphemy was used in order to proscribe insult-
ing acts against any other tolerable religion. Additionally, it should not be
considered accidental that the use of terms such as religious insult, incitement
to religious or racial hatred, defamation or discriminatory speech is not
frequent and, when used, they concern minority religious dogmas rather than
the dominant religion (the term dominant is used in the Greek Constitution).
The whole issue has not considerably attracted the attention of the leading opin-
ion of legal doctrine in the country.
7. The Code uses the term maliciously in order to put emphasis on the inten-
tion of the perpetrator. When first-instance criminal courts condemn perpetrators,
Appendices

they always refer to their malicious intention. However, as is indicated by the


case law and relevant doctrine, the intention is always obscure and therefore
hard, not to say impossible, to identify: how can one presume the malicious
intention of a work of art and prove it in the framework of a judicial procedure?
8. Yes.
No.
9. No, it can equally result from an ex officio investigation carried out by the
prosecutor.
10. As a rule, incidents of alleged blasphemy (cf. answer 5) are sent before
the first-instance criminal court, which regularly punishes the perpetrator, which
could be the artist, the novelist or the artistic director. Interim measures have
equally been imposed on a few occasions in recent years in order to ban the
circulation of a book or forbid showing of a film. However, it must be noted that
the appeal courts have always acquitted the perpetrators in the name of the con-
stitutionally enshrined principles of freedom of speech or freedom of art, offering
liberal answers to blasphemy in the Greek jurisprudence. Of course, acquittal of
the accused some months or even a year later cannot do much to bring things
back to their previous state of affairs. The censorship damage is already done.
As a rule, these cases provoke tensions in Greek society and attract the interest
of the electronic media. In such cases, private TV channels always find a good 273
occasion to see their viewing figures rise by triggering the religious feelings of
public opinion.
In contrast, a current case of incitement to religious hatred against a novelist of
a negationist book (the only such case pending before the Greek judiciary) has
not attracted equal interest from the public or the press.
11. The Greek press does not have a uniform position vis--vis such cases. One
could argue that populist right-wing papers and tabloids always report them,
in order to aggravate the feelings of religious sensitivity of the religious major-
ity whereas in contrast most of the papers report such cases with restraint, try-
ing to balance between the two values in question. A considerable part of the
Greek press addresses cases of prosecution of blasphemous acts with indigna-
tion against censorship. These are the only newspapers that also report the few
judicial cases of incitement to religious hatred. In general, the reporting problem
has more to do with private TV coverage than the press, which has proved to be
much more responsible.

Ireland200
1. Although Article 40.6.1 of the Constitution declares that the publication or
utterance of blasphemy is an offence, neither the Constitution nor legislation

200. Reply by Ms Finola Flanagan, Member of the Venice Commission, Ireland.


Blasphemy, insult and hatred

provides any definition of blasphemy. This is the only crime expressly created in
the Constitution. Section 13.1 of the Defamation Act 1961 creates the criminal
offence of blasphemous libel. Section 7.2 of the Censorship of Films Act 1923
provides for the withholding of a certificate from a film with blasphemous content.

In Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 I.R. 484, the


Supreme Court held that in the absence of a statutory definition of the offence
of blasphemy it was impossible to define what the offence of blasphemy con-
sisted of. This task of defining the crime was found to be one for the legislature
and not for the courts. In fact, no legislation had ever been enacted creating the
crime of blasphemy. At common law, blasphemy involved only attacks on the
established Church, namely the Anglican Church, and it did not apply to other
religions.201 Initially, the offence involved the mere denial of Christianity, in Eng-
land at least, and scurrilous language was considered essential to constitute the
offence. In Bowman it was said that to constitute blasphemy at common law
there must be such an element of vilification, ridicule or irreverence as would be
likely to exasperate the feelings of others and so lead to a breach of the peace.
In the absence of Irish authority on what constitutes the actus reus in Irish law,
this definition in Bowman might well have passed into Irish law and therefore an
essential factor in the offence would be the tone of the language. An attack in
temperate terms would not constitute blasphemy.
274

This can be explained on the basis of historical grounds.

Firstly, Article 44 of the Constitution, deleted by referendum in 1972, recog-


nised the Catholic Church as having a special position and also the Church
of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland,
the Religious Society of Friends in Ireland as well as the Jewish congregations
and other religious denominations existing in Ireland being all the religious
denominations existing in the state when the Constitution came into operation.
While to a contemporary eye Article 44 appears anachronistic, in 1937 it rep-
resented a skilful endorsement of religious pluralism. In Quinns Supermarket
Case [1972] I.R. at 23 it was said that this deletion has done nothing to
alter [the] acknowledgement that, religiously speaking, the society in which we
live is a pluralist one.

Secondly, at common law, blasphemy consisted only of attacks on the doc-


trines of the established Anglican Church and so did not embrace attacks on
other Christian denominations or other world religions. Given its discriminatory
nature, it is difficult to see how the common law offence of blasphemy could
have survived the enactment of the Constitution having regard to the constitu-
tional ban on religious discrimination in Article 44.2.3.

201. Bowman v. Secular Society [1917] AC 406.


Appendices

2. An attack on religion might, depending on the circumstances, constitute an


offence under Section 2 of the Prohibition of Incitement to Hatred Act 1989,
which criminalises actions likely to stir up hatred against a group of persons on
account of, inter alia, their religion.

Other general legislation that might be used to combat racial hatred includes the
Criminal Justice (Public Order) Act 1994, which deals with offences such as dis-
orderly conduct in a public place; threatening, abusive or insulting or obscene
material in a public place; riot; violent disorder, and so on.

The long title of the Prohibition of Incitement to Hatred Act, 1989, calls it an
act to prohibit incitement to hatred on account of race, religion, nationality or
sexual orientation. This is a specific anti-hate speech law. Section 2 provides
as follows:
It shall be an offence for a person

(a) to publish or distribute written material,

(b) to use words, behave or display written material,

(i) in any place other than inside a private residence, or

(ii) inside a private residence so that the words, behaviour or material are heard
or seen by persons outside the residence,
275
or

(c) to distribute, show or play a recording of visual images or sounds, if the writ-
ten material, words, behaviour, visual images or sounds, as the case may be, are
threatening, abusive or insulting and are intended or, having regard to all the cir-
cumstances, are likely to stir up hatred.

In proceedings for an offence under subsection 1, if the accused person is not


shown to have intended to stir up hatred, it shall be a defence for him to prove
that he was not aware of the content of the material or recording concerned and
did not suspect, and had no reason to suspect, that the material or recording
was threatening, abusive or insulting.

In proceedings for an offence under subsection 1.b, it shall be a defence for the
accused person
(i) to prove that he was inside a private residence at the relevant time and had no
reason to believe that the words, behaviour or material concerned would be heard
or seen by a person outside the residence, or

(ii) if he is not shown to have intended to stir up hatred, to prove that he did not
intend the words, behaviour or material concerned to be, and was not aware that
they might be, threatening, abusive or insulting.

This situation can be explained by 1.c: other grounds. The Prohibition of Incite-
ment to Hatred Act 1989 was passed for the purposes of incorporating the
Blasphemy, insult and hatred

obligations under the International Covenant on Civil and Political Rights. The
race and religious make-up of the population in Ireland has changed dramati-
cally since the time of drafting the 1989 Act.
3. The Irish Constitution (1937) provides at Article 40.6.1 for the right of citi-
zens to express freely their convictions and opinions subject to public order and
morality.
It was considered that the Prohibition of Incitement to Hatred Act 1989 met both
international obligations and domestic needs to protect the input of free speech
and recognised that the right to free speech was not an absolute one.
Ireland, having ratified the European Convention on Human Rights in 1957,
gave effect to it in domestic law by the European Convention on Human Rights
Act 2003. This was expressed as being subject to the Constitution. The Act
requires that statutory provisions must be interpreted and applied insofar as
possible in a manner compatible with the states obligations under the Conven-
tion. In Murphy v. Independent Radio and Television Commission [1997] 2 ILRM
467, it was stated that the rights protected by Article 10 of the Convention are
for the most part protected by the Constitution, and the limitations on the exer-
cise of those rights under the Constitution largely correspond to the limitations
expressly permitted by the Convention.
276 4. In general the legislation provides adequately for these matters. The criminal
law, together with the Prohibition on Incitement to Hatred Act and the Criminal
Justice (Public Order) Act, provide for appropriate offences. In addition to the
legislation outlined above, there is equality legislation which prohibits discrimi-
nation on grounds of religious belief (or the absence of belief) and on grounds
of racism.
A view has been expressed that the lack of prosecutions under the Prohibition
on Incitement to Hatred Act 1989 is due to difficulties with standards of proof.
Prosecutions may also be made under the Criminal Justice (Public Order) Act
1994. Since prosecutions under the 1994 Act do not require an intention to stir
up hatred but only an intent to cause a breach of the peace or being reckless as
to whether one may be caused, they are more likely to be successful than pros-
ecutions under the 1989 Act.202 In the circumstances, it is important that existing
legislation be utilised.
In its Report on the Crime of Libel, in 1991, the Law Reform Commission con-
cluded that there was no place for an offence of blasphemous libel in a society
which respects freedom of speech. The argument in its favour that the publica-
tion of blasphemy causes injury to feelings appeared to [the Commission] to
be a tenuous basis on which to restrict freedom of speech. The argument that
freedom to insult religion would threaten the stability of society by impairing the

202. David Cowhey, Racist hate speech law in Ireland: the need for reform, Cork on-line Law Review
2006 IV.
Appendices

harmony between groups seemed highly questionable in the absence of any


prosecutions.203 The Commission recommended that in any revision that might
be undertaken by referendum of the Constitution so much of Article 40.6.1 as
renders the publication or utterance of blasphemous matter an offence should be
deleted. The Law Reform Commission recommended that, in the event of that rec-
ommendation not being accepted, a new offence entitled publication of blas-
phemous matter should be created governing both Christian and non-Christian
religions. Blasphemous matter, they recommended, should be defined as mat-
ter the sole effect of which is likely to cause outrage to a substantial number of
the adherents of any religion by virtue of its insulting content concerning matters
held sacred by that religion. No such offence has been created.
An all-party Committee of the Oireachtas was established in 1994 to review
the Constitution in its entirety. This Review Group also recommended that the
retention of the present constitutional offence of blasphemy is not appropriate.
They noted particularly that there had been no prosecution for blasphemy in
the history of the state. They commented that insofar as the protection of reli-
gious beliefs and sensibilities is necessary, this could best be achieved by care-
fully defined legislation along the lines of the Prohibition of Incitement to Hatred
Act 1989 which applies equally to all religious groups, but which at the same
time took care to respect fundamental values of free speech and freedom on
conscience.
277
There is no negationism or crime of denial in Irish law.
5. There have been very few blasphemy prosecutions in Ireland and none since
independence in 1922. The only case in Ireland on the offence of blasphemy
is Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 I.R. 484. The
applicant sought leave under the Defamation Act 1961 to institute criminal pro-
ceedings for blasphemous libel against the respondents following a cartoon and
caption accompanying a newspaper article on the implications of a divorce ref-
erendum. The Supreme Court held that, in the absence of any legislative defini-
tion of the constitutional offence of blasphemy, it was impossible to say of what
the offence of blasphemy consisted. The Court found that whilst the cartoon in
question may have been in bad taste no insult to the Blessed Sacrament was
intended and no jury could reasonably conclude that such insult existed or was
intended to exist.
I am not aware of any case brought before the Irish courts on the issue of incite-
ment to religious hatred. In such a case any victim would appear in court as a
prosecution witness.
6. The distinction between blasphemy, religious insult, incitement to reli-
gious or racial hatred, defamation and discriminatory speech did not play
a role in the Corway case.

203. The Crime of Libel, Law Reform Commission (1991) at paragraph 17.
Blasphemy, insult and hatred

7. Under the Prohibition of Incitement to Hatred Act 1989, the accused will
be guilty of an offence if the written material, words, behaviour, visual images
or sounds, as the case may be, are threatening, abusive or insulting and are
intended or, having regard to all the circumstances, are likely to stir up hatred. It
is to be noted that the Prohibition of Incitement to Hatred Act 1989, Section 2.2,
does not rely on actual harm being caused and only requires intention. There-
fore a lack of intention is a defence. Section 4 creates an offence of preparation
or possession of material with a view to its distribution, broadcasting, etc. Not
only must the words be threatening, abusive or insulting, they must also be
intended or likely to stir up hatred. Defences include where an accused is not
shown to have intended to stir up hatred, or that he or she was not aware of the
content of the material and did not suspect that the material was threatening,
abusive or insulting. It is a defence in relation to threatening, abusive or insult-
ing words, behaviour or material delivered inside a private residence that the
accused had no reason to believe that they would be seen or heard outside the
private residence.

This is in contrast to the Criminal Justice (Public Order) Act 1994 (see paragraph
18 below) which, by contrast, does not require an intention to stir up hatred but
only an intent to cause a breach of the peace or being reckless as to whether
one may be caused. The point is made that prosecutions are more likely to be
278 successful pursuant to the Criminal Justice (Public Order) Act 1994 than the
1989 Act.204

8. Leave of the court is required under the Defamation Act 1961 in order to insti-
tute criminal proceedings for blasphemous libel. However, as previously stated,
the offence of blasphemy is not statutorily defined in Ireland.

Offences under sections 2, 3 and 4 of the Prohibition on Incitement to Hatred


Act 1989 may be tried summarily or on indictment. In general, a file is sent to
the Director of Public Prosecutions Office by the Garda Sochana on all indict-
able offences where a decision has to be taken whether to prosecute summarily
or on indictment. Subject to the right of the presiding judge to refuse jurisdic-
tion, cases may be prosecuted summarily. However, the Garda Sochana are
directed to refer any file to the DPP if they consider trial on indictment is war-
ranted. The Garda are free to refer any prosecution to the DPP for legal advice.
It appears that most offences under Section 2 are dealt with summarily.

There is no appeal against non-prosecution.

9. While prosecutions are most likely to take place if there are victims who make
complaints to the Garda it would also be open to the Garda to initiate criminal
proceedings themselves.

204. David Cowhey, Racist hate speech law in Ireland: the need for reform, Cork on-line Law Review,
2006 IV.
Appendices

10. There have been no such recent incidents in Ireland.


11. There have been no such recent incidents for the press to report on in
Ireland.

The Netherlands205
1. In the Netherlands there is specific legislation prohibiting blasphemy and
religious insult. The relevant provisions are to be found in the Wetboek van
Strafrecht, the Dutch Penal Code (hereinafter: PC).
Article 147 PC provides that a term of imprisonment of not more than three
months or a fine of the second category shall be imposed upon: (1) a person
who publicly, either orally or in writing or by image, offends religious sensibili-
ties by malign blasphemies; (2) a person who ridicules a minister of religion in
the lawful execution of his duties; (3) a person who makes derogatory statements
about objects used for religious celebration at a time and place at which such
celebration is lawful.
The second part of this provision (sections 2 and 3) stems from the year 1886.
The first part, however, was adopted as late as 1932. In 1886, Minister of
Justice Modderman, a liberal, found there was no need for legislation on blas-
phemy.206 In the 1930s, however, the so-called Lex Donner was adopted after
left-wing anti-religious propaganda was felt to have become a serious threat to
279
the peace of the land.
Article 429bis PC provides that a person who, in a place visible from a public
road, places or fails to remove words or images that offend religious sensibilities
by reason of their malign and blasphemous nature is liable to a term of deten-
tion of not more than one month or a fine of the second category. Whereas
Article 147 PC is regarded as a serious offence against public order, Article
429bis PC counts as a lesser offence related to public order. This provision also
entered into force in 1932.
With regard to blasphemy, one may also refer to Article 147.a PC. This article
provides, inter alia, that a person who disseminates, publicly displays or posts
written matter or an image containing statements that offend religious sensibili-
ties by reason of their malign and blasphemous nature, or who has such in stock
to be disseminated, publicly displayed or posted, is liable to a term of imprison-
ment of not more than two months or a fine of the second category, where he
knows or has serious reason to suspect that the written matter or the image con-
tains such statements.
Religious insult is regarded as a serious offence against public order. The main
provisions are articles 137.c and 137.e PC. They were inserted into the Penal

205. Reply by Mr Pieter van Dijk, Member of the Venice Commission, the Netherlands.
206. A.L.J. Janssens and A.J. Nieuwenhuis, Uitingsdelicten [Crimes of expression], Deventer:
Kluwer 2005, p. 197.
Blasphemy, insult and hatred

Code in 1934, especially in order to protect Jewish and Roman Catholic citi-
zens.207 In 1971, some amendments were made in order to comply with the
International Convention on the Elimination of all Forms of Racial Discrimination.
It must be stressed that these provisions do not aim specifically at the prohibition
of religious insult, but at all kinds of discriminatory acts.

Article 137.c PC provides that any person who verbally or by means of written
or pictorial material gives intentional public expression to views insulting to a
group of persons on account of their race, religion or convictions, their hetero-
sexual or homosexual preferences or physical, mental or intellectual disability,
shall be liable to a term of imprisonment not exceeding one year or to a fine of
the third category.

Article 137.e PC provides, inter alia, that any person who for reasons other than
the provision of factual information makes public an utterance which he knows
or can reasonably be expected to know is insulting to a group of persons on
account of their race, religion or convictions, heterosexual or homosexual prefer-
ence, or physical, mental or intellectual disability, or which incites hatred against
or discrimination of other persons or violence against the person or property of
others on account of their race, religion or convictions, heterosexual or homo-
sexual preference or physical, mental or intellectual disability, shall be liable
to a term of imprisonment not exceeding six months or to a third-category fine.
280

For the prohibition of religious insult, one does not have to rely on the general
provisions on defamation, since articles 137.c and 137.e deal with specific
cases of discrimination.208 One could refer, though, to articles 146 and 148 PC,
which are highly relevant to this topic. Besides, they have been part of Dutch
law since 1886. According to Article 146 PC, a person by whom, by creating
disorder or by making noise, either a lawful public gathering intended to profess
a religion or a belief, or a lawful ceremony for the professing of a religion or a
belief, or a lawful funeral service is intentionally disturbed, is liable to a term of
imprisonment of not more than two months or a fine of the second category. Art-
icle 148 PC provides that a person who intentionally prevents or obstructs lawful
access to a cemetery or crematorium, or the lawful transport of a dead human
body to a cemetery or a crematorium, is liable to a term of imprisonment of not
more than one month or a fine of the second category.

2. There is no specific legislation prohibiting religious hatred. Hate speech is


covered by Article 137.c PC. There is, however, an article which prohibits incite-
ment to hatred. The first paragraph of Article 137.d PC stipulates that any per-
son who verbally or by means of written or pictorial material publicly incites

207. B. van Stokkom, H. Sackers and J-P Wils, Godslastering, discriminerende uitingen wegens
godsdienst en haatuitingen; een inventariserende studie (Blasphemy, discriminating utterances on the
basis of religion and hate utterances: an inventory) [WODC-rapport], Nijmegen: Radbout University
2006, p. 36.
208. See A.L.J. Janssens, Strafbare belediging [Punishable insult], Amsterdam: Thela Thesis 1998.
Appendices

hatred or discrimination against other persons or violence against the person or


the property of others on account of their race, religion, convictions, sex, het-
erosexual or homosexual preference or physical, mental or intellectual disability,
shall be liable to a term of imprisonment not exceeding one year or to a fine of
the third category. This provision, too, was adopted in 1934, for the same rea-
sons as articles 137.c and 137.e PC and amended in 1971 in order to make
Dutch law compatible with international law binding on the Netherlands.

In 1992, a new provision, relating to incitement to (religious) hatred, was


adopted. Article 137.f stipulates that any person who participates in, or pro-
vides financial or other material support for, activities aimed at discrimination
against persons on account of their race, religion, convictions, sex, their hetero-
sexual or homosexual preference or physical, mental or intellectual disability,
shall be liable to a term of imprisonment not exceeding three months or to a
second-category fine.

3. None of the provisions mentioned contains a specific freedom-of-speech


clause. Article 7 of the Constitution guarantees the right to freedom of speech.
The first paragraph holds that no one shall require prior permission to publish
thoughts or opinions through the press, without prejudice to the responsibility of
every person under the law. The second paragraph provides that rules concern-
ing radio and television shall be regulated by Act of Parliament. There shall be
no prior supervision of the content of a radio or television broadcast. The third 281
paragraph determines that no one shall be required to submit thoughts or opin-
ions for prior approval in order to disseminate them by means other than those
mentioned in the preceding paragraphs, without prejudice to the responsibility
of every person under the law. The holding of performances open to persons
younger than 16 years of age may be regulated by Act of Parliament in order to
protect good morals. According to the fourth and last paragraph, the preceding
paragraphs do not apply to commercial advertising.

The words under the law in the first paragraph refer to provisions of primary
legislation. However, the same words in the third paragraph are given a broader
meaning in legal doctrine and practice, including delegated legislation and leg-
islation adopted by provincial and municipal councils. Some of the provisions
of the Penal Code discussed in sections 1 and 2 are examples of primary leg-
islation restricting the right to freedom of speech, such as Articles 137c,d,e PC.

According to Article 120 of the Constitution, courts do not have power to review
the compatibility of primary legislation with the Constitution. They do have the
power, though, and even the obligation to review the conformity of Dutch law
and its application with self-executing provisions of treaties and of decisions of
international organisations. This is where, inter alia, Article 10 of the European
Convention on Human Rights [hereafter: ECHR] comes into play. Consequently,
Article 7 of the Constitution is not the only relevant freedom-of-speech clause to
be looked at by the courts.
Blasphemy, insult and hatred

Freedom of speech is one of the factors which may need to be taken into account
by the court when adjudicating on the question whether an offence under Art-
icle 137.c PC has been committed. The same applies to freedom of religion,
laid down in Article 6 of the Constitution. So the relation between the relevant
provisions in the Penal Code and the right to freedom of speech is not a one-
way route.

4. Legal doctrine is very much intrigued by the question of whether there is a


need for more (or even less) legislation on religious insult and blasphemy; so are
politicians and members of the public.

Simultaneously, much doctrinal debate focuses on the question of what should


be the policy of the Openbaar Ministerie, the Dutch Public Prosecution Service,
in cases in which the relevant provisions of the Penal Code restrict freedom of
speech. If threats are made in a case of incitement to violence, attacks on human
dignity or verbal abuse, penal law may come into play.209 In a publication
issued by the WODC (the Research and Documentation Centre affiliated to the
Ministry of Justice) it has been argued that incitement to violence should be the
key criterion when it comes to determining the question whether offences under
article 137.c PC or 137.d PC have been committed.210

282 Although Article 147 PC does not play a role of importance in the case law,211
it now is at the centre of public attention after the Dutch film maker Theo van
Gogh was brutally, ritually murdered by a religious fundamentalist on 2 Novem-
ber 2004. He was soon to become the symbol of freedom of expression.

In reaction to the murder, Prime Minister Balkenende pleaded for a more restric-
tive approach towards freedom of speech, in the sense that an increased aware-
ness of the suffering caused by certain expressions is desirable. The Minister of
Justice at the time felt it was possible to recommend initiating new, stricter legis-
lation. The Minister for Immigration and Integration, however, said there was no
need to do so. On the contrary, more effort should be made to integrate those
who are new to the country. In short, the debate on whether legislation ought to
be changed was said to be very much influenced by the alleged clash between
cultures.212

The necessity of new legislation is a much debated topic, both in and outside
The Hague. In relation to the blasphemy clause, proponents of abolition of

209. A. Nieuwenhuis, Tussen godslastering en kerstgedachte [Between blasphemy and Christmas


thoughts], Mediaforum 2005-1, p. 1.
210. A. Ellian, in Vloeken, schelden en schimpen [Swearing, name-calling and scoffing], Justitile
Verkenningen 3|03, Den Haag: WODC 2003, p. 35.
211. See below, under point 5.
212. See for instance P.B. Cliteur, Godslastering en zelfcensuur na de moord op Theo van Gogh
[Blasphemy and self-censorship after the murder of Theo van Gogh], Nederlands Juristenblad 2004,
pp. 2328-2335.
Appendices

Article 147 PC combat advocates of more strict application and extension of


the said article.
Among the questions raised by MPs, there are often questions asked by mem-
bers of the small Christian parties which have to do with blasphemy.213 Two MPs
have suggested introducing an alternative to the legal protection provided
by the courts.214 Their fellow members of Parliament have been critical of this
idea.215 The same two MPs also declared themselves in favour of adaptation of
Article 137.d PC, since they found that this provision was interpreted too nar-
rowly by the courts.
In a recent WODC report, researchers from the University of Nijmegen give
an overview of the doctrine.216 Bills that aim to restrict freedom of speech usu-
ally raise much public indignation. For this reason, researchers are of the opin-
ion that initiating new legislation or abolishing existing laws has no prospect.
The existing legal provisions should be better used. First, existing legal provi-
sions and case law offer sufficient scope for prosecuting outspoken racists and
experienced hate-mongers. In those cases a more strict prosecution policy might
be initiated. Secondly, they argue that the case law of the European Court of
Human Rights provides opportunities to reconsider prosecution policies.217 Since
the government has just tendered its resignation, it is for the new government to
respond to this report.218
Recently a bill concerning negationism was introduced by a Member of Parlia- 283

ment.219 Since, as said before, Article 120 of the Constitution provides that the
constitutionality of Acts of Parliament and treaties shall not be reviewed by the
courts, constitutional review in the (pre-) parliamentary process is of imminent
importance. The opinion of the Council of State of August 2006 on the initiative
has not been made public yet, and nothing else has been heard about the fate
of the initiative.
5. On the one hand, there have been very few cases concerning blasphemy
tried in Dutch courts. In 1968, a prosecution against the well-known author
Gerard van het Reve (alias: Reve) failed.220 The writer had presented God as

213. See, for instance, Questions II 2006/2007, No. 2060705680; Second Chamber (Annex)
2005-2006, No. 2019; Second Chamber (Annex) 2004-2005, No. 1993.
214. Second Chamber, 2005-6, 30 448, No. 1, Initiative memorandum by MPs Koopmans and Van
Haersma Buma, Alles van waarde is weerbaar; vrijheid is een verantwoordelijkheid (Everything of
value is defensible; freedom is responsibility).
215. Second Chamber, 2006-7, 30 449, No. 3, pp. 13-14.
216. Van Stokkom, Sackers and Wils, Godslastering (Blasphemy).
217. See also Second Chamber, 2004-2005, 29 800 VI, No. 41; Second Chamber 2006-2007,
30 800 hoofdstuk VI, No. 2, p. 217; Second Chamber, 2005-2006, 30 800 hoofdstuk VI, No. 2,
p. 236.
218. Second Chamber, 2006-2007, 30 800 VI, No. 38
219. Second Chamber, 2005-2006, 30 579 (initiative by MP Huizinga-Heringa).
220. See E.J. de Roo, Godslastering: rechtsvergelijkende studie over blasfemie en religiedelicten
(Blasphemy: comparative legal study on blasphemy and delicts relating to religion), Deventer Kluwer
1970, pp. 113-25.
Blasphemy, insult and hatred

a donkey. The Supreme Court held that only a person who had had the inten-
tion to express himself with regard to a particular religion in a contemptible and
humiliating manner was guilty of blasphemy in the sense of Article 147 PC.
According to the Supreme Court the words malign221 blasphemies did not
merely have the function to describe a certain form of expressions which were
capable of hurting religious feelings; they also implied a subjective element of
an intention to show contempt for the Supreme Being.222 Ever since this judg-
ment, no prosecutions on the basis of Article 147 PC have been made,223 alleg-
edly for the reason that accusations are hardly ever reported to the police.224

On the other hand, many cases concerning discriminatory insult on account of


race and/or religion have been tried in court and so have some cases concern-
ing incitement to racial and/or religious hatred or discrimination. In the vast
majority of these cases, the perpetrator has been convicted, at least since the
year 2000. However, the discrimination clauses appear not to really bite, when
discriminatory acts or expressions merely relate to religions or religious convic-
tions.225 And in cases where insults or incitements to hatred or discrimination
concerned homosexuality, acquittals have been reached.226

Only in two cases of racial insult have acquittals been upheld by the Supreme
Court in appeal in cassation. First, this is what happened in the Somali case con-
cerning racist remarks in an interview, in which the Supreme Court on appeal
284
in cassation quashed a judgment made by the Den Bosch Court of Appeal.227

Secondly, the prosecution failed in a case in which it argued that Jewish citizens
had been intentionally insulted on account of their race and religion, in a novel.228

The majority of convictions concern Article 137.c PC. Intentional public expres-
sions were said to be punishable where they were felt to be insulting to Jewish cit-
izens on account of their race229 and religion,230 to foreigners on account of their

221. Malign, or scornful.


222. Court of Cassation 2 April 1968, 1968/373, annotated by Bronkhorst (Donkey case).
223. On 29 January 2007, the Public Prosecution Office announced its decision not to prosecute
pop singer Madonna, who had posed as a crucified Christ figure on a larger-than-life, lit cross in her
latest concert tour. The youth section of a Christian political party had reported offences under Article
147 PC and Article 137c PC.
224. Van Stokkom, Sackers and Wils, Godslastering (Blasphemy), p. 59.
225. Second Chamber, 2003-2004, 29 614, No. 2, p. 14, Grondrechten in een pluriforme samen-
leving (Basic rights in a pluriform society).
226. The most notorious is the Van Dijke case (Court of Cassation 09-01-2001, case 00945/99,
Nederlandse Jurisprudentie (NJ) 2001, 203; Court of Appeal The Hague 09-06-1999, case
2200278098), see under point 7; Court of Appeal Arnhem 26-06-2001, case 21-000117-00 (min-
ister). This judgment was upheld by the Court of Cassation (14-03-2003, case 01977/01, 2003,
261). Also see District Court Rotterdam 08-04-2002, case 10/040070-01 (Imam).
227. Court of Cassation 30-09-2003, case 01752/02, 2004, 189, annotated by PMe (Somalias).
228. Court of Cassation 09-10-2001, case 01012/00, 2002, 76, annotated by JdH (dance les-
sons). See point 7.
229. District Court Zutphen 18-07-2006, case 06/460548-05, NJ 2005, 419.
230. District Court Amsterdam 27-01-2005, case 13/037899-04 (Parnassus road, Amsterdam); Dis-
trict Court 30-11-2006, case 11/500277-06 (Hardinxveld-Giessendam).
Appendices

race231 and to asylum seekers on account of their race.232 Religious insult through
the Internet was also deemed punishable on the basis of Article 137.c PC.233
In October 2006 Dordrecht District Court found a young woman and a young
man guilty of the criminal offence laid down in 137.e PC. Wearing t-shirts, they
made public an utterance which they knew or could reasonably be expected to
know was insulting to Jewish citizens on account of their race.234 Article 137e
was also the basis of a conviction pronounced by Haarlem District Court in Feb-
ruary 2006. Among other things by keeping emblems with swastikas, they were
said to have made public an utterance which they knew or could reasonably be
expected to know was insulting to Jewish citizens on account of their race.235
Den Bosch District Court found a young man guilty of the offence of Article 137.c
PC but not of Article 137.d. In this case the suspect had given intentional public
expression to views insulting to a group of persons on account of their religion,
in this case Islam.236 It was held that the exercise of freedom of expression is sub-
ject to restrictions that are necessary in a democratic society for the prevention
of excesses of intolerance.
There have been convictions of suspects for incitement to hatred against refugees
and asylum seekers on account of their race237 or religion,238 and for incitement
to discrimination against foreign workers on account of their race.239 Incitement
to hatred through the internet is also punishable on the basis of Article 137.d PC.
This conclusion was reached by Dordrecht District Court in 2002.240 285

The prosecution based on Article 137.d PC against the so-called Hofstad group
may be regarded as remarkable from a legal point of view. Members of this
group had been prosecuted on suspicion of many criminal offences, among
them membership of a criminal organisation (Article 140 PC) and a terrorist

231. Court of Appeal Amsterdam 11-09-2003, case 23-001934-01; District Court 30-11-2006, case
11/500277-06 (Hardinxveld-Giessendam); District Court Zwolle 03-01-2006, case 07.400643-05
(Portuguese).
232. Court of Appeal s-Hertogenbosch 29-04-2003, case 20.000199.02 (Echt); District Court Leeu-
warden 08-06-2000, case 17/085214-00 (Kollum). Also see Court of Appeal Leeuwarden 18-10-
2001, case 24-000544-00 (Kollum).
233. District Court Amsterdam 25-01-2006, case 13/463305-05 (Periodic Internet System). Appeal
dismissed by Amsterdam Court of Appeal (17-11-2006, case 23-000547-06). Also see District Court
s-Hertogenbosch 21-12-2004, case 01/040521-04 (Rosmalen).
234. District Court Dordrecht 05-10-2006, case 11/500399-06 (Papendrecht I) and District Court
Dordrecht 05-10-2006, case 11/500398-06 (Papendrecht II).
235. District Court Haarlem 20 February 2006, case 15/034067-04 (Schiphol).
236. District Court s-Hertogenbosch 19-07-2005, joint cases 01/826234-05, 01/820106-05
(Valkenswaard).
237. Court of Appeal s-Hertogenbosch 29-04-2003, case 20.000199.02 (Echt). This judgment was
partly quashed by the Court of Cassation (08-06-2004, case 02328/03, 2004, 413), though not
in relation to this part of the judgment. Also see District Court Assen 14-02-2001, case 19.830195-
00 (Roden).
238. Court of Cassation 02-04-2002, case 00106/01 (Dordrecht).
239. Court of Appeal s-Hertogenbosch 11-10-2004, case 20.001264.04. See also Court of Appeal
Amsterdam 11-09-2003, case 23-001934-01.
240. District Court Dordrecht 11-06-2002, case 11/010053.02 (NNP).
Blasphemy, insult and hatred

organisation (Article 141 PC). The Rotterdam District Court found that the organ-
isation they belonged to aimed to incite hatred on account of peoples religion
or their homosexual preference.241

If victims of a crime have suffered loss, they may initiate civil proceedings against
the suspect or apply for a one-off payment from the Criminal Injuries Compen-
sation Fund. They may also attempt to obtain compensation by requesting the
public prosecutor to claim their loss. However, blasphemy, religious insult and
incitement to religious hatred are all offences against the public order. Besides,
the offences laid down in articles 137.c and 137.d demand insult or incitement
to hatred of a group of persons. In many cases it is not possible to specify a par-
ticular victim. This may explain why there have not been many such requests in
the cases discussed. In some of the above-mentioned cases, though, victims have
requested the public prosecutor to claim their loss. In the so-called Papendrecht
cases such claims were declared inadmissible in the absence of direct loss.242
In the Portuguese case a claim was successful, though it had not been made in
relation to the offence of Article 137.c PC.

6. The distinction between blasphemy, religious insult and incitement to religious


or racial hatred does play a role in the case law, for these three punishable
offences are regulated in distinct provisions of the Penal Code, though the provi-
sion on blasphemy currently is de facto a dead letter. In some cases both (reli-
286
gious) discriminatory insult and incitement to hatred or discrimination have been
prosecuted in combination, but they have always been dealt with separately.
The distinction does not seem to be an issue in legal doctrine.

7. With regard to the blasphemy clause (Article 147 PC), the intention of the
perpetrator plays a minor role in the formulation of the legal prohibition, but a
major role in the prospect of a conviction. The foreseeability of the discrimina-
tory effects, on the contrary, seems to follow from the text of the provision con-
cerned. Despite this fact, it was given a very narrow interpretation in the Donkey
case (see above, under point 5).

At first sight, things seem less complicated in regard to the law on religious
(discriminatory) insult and incitement to hatred or discrimination. Intent is a
requirement in both descriptions of the offence. However, in order to be quali-
fied as an offender, the intentions of the suspect play an important role. Here
the applicable freedom-of-speech clauses come into play (see point 3). If the
perpetrator intends to give a scientific (biological) explanation for certain dif-
ferences between races, he may be exculpated. Likewise, exculpation may fol-
low in the case of a comedian who intends to expose abuses or to point out
social injustices of which followers of a certain religion would make themselves

241. District Court Rotterdam 10-03-2006, joint cases 10/000322-04, 10/000328-04,


10/000396-04, 10/000393-04, 10/000323-04, 10/000395-04 (Hofstad group).
242. In the second Papendrecht case the claim was partly admissible, but not in respect of the
137.e PC offence.
Appendices

guilty.243 The context in which something is said or done is vitally important for
the prospect of conviction.244

8. Dutch criminal law acknowledges the right to exercise prosecutorial discre-


tion: it is up to the Public Prosecution Service to decide whether to prosecute or
not if offences of blasphemy, religious insult or incitement to religious hatred have
been committed. The Public Prosecution Service is not a government department.
Together with the courts, it forms what is known as the judiciary, the authority
responsible for the administration of justice. The Minister of Justice carries politi-
cal responsibility for the departments conduct and performance and he may be
called upon to render account to both Houses of Parliament. The minister super-
vises general policy on investigation and prosecution. Only rarely does he inter-
vene in individual cases, though he may issue instructions to the departments
officers after consulting the Board of Procureurs-General.

There is a right to appeal to the Court of Appeal against non-prosecution, laid


down in Article 12 of the Criminal Procedure Code.245

9. A complaint, in the sense of reporting an offence, by the victim(s) is certainly


helpful, but prosecution of blasphemous acts et cetera does not depend on such
complaints. If the complaint merely relates to religion, it is in all practical fact
bound to fail. The case law discussed under point 5 shows that the prosecution
has a much stronger case when the victim has been discriminated against in
respect of race, too. 287

10. The most controversial cases concerning the discrimination clauses have to
do with alleged discrimination against homosexuals in which freedom of reli-
gion was invoked as a ground for the exclusion of liability of punishment. These
cases have been discussed above and they are not of direct relevance to this
questionnaire, since they do not directly concern religious insult and incitement
to religious hatred.

An important recent case deserves to be mentioned in this respect. In 2003,


the former Member of Parliament Ayaan Hiri Ali said in a national newspa-
per, among other things, that Islam had in certain respects to be regarded as
retarded and the prophet Muhammad as a pervert. The public prosecutor
decided not to prosecute, although 600 complaints had been made.

Later on, Hirsi Ali and the above-mentioned film maker Van Gogh made the film
Submission. The latter was murdered and the former was put under strict security

243. C.P.M. Cleiren et alii (eds), Strafrecht: tekst en commentaar: de tekst van het Wetboek van
Strafrecht en enkele aanverwante wetten voorzien van commentaar (Criminal law: text and com-
mentary; the text of the Criminal Code and some related laws with commentary), Deventer: Kluwer
2004, pp. 704-5.
244. See Court of Cassation 09-01-2001, case 00945/99, 2001, 203 (van Dijk).
245. See, for instance, the appeal brought by the List Pim Fortuyn after non-prosecution of an alleged
Article 137d PC offence (though not on account of race or religion): Court of Appeal Den Haag
19-05-2003, case 02075.K10, 2003, 382.
Blasphemy, insult and hatred

surveillance. Some members of the public were evidently trying to take the law
into their own hands. It was then that the debate discussed above (under point 3)
started. And it is still going on.

11. The Dutch press acts in a rather independent way. In the Van Gogh saga,
reporters may be said to have held back a bit. The crime concerned was a very
serious offence against public order indeed. After the tragic events had taken
place, many people politicians and members of the public alike felt public
order was in acute danger. By no means, though, has this sentiment stood in
the way of a broad and balanced discussion in the media and elsewhere of the
question whether legislation in this field needed to be changed or even partly
abolished.

Poland246
1. The relevant legislation is found in the Criminal Code and the Broadcasting
Act.

Criminal Code in the part on Offences against freedom of conscience and


religion

288 Article 194

Whoever restricts another person from exercising the rights vested in the latter
because of this persons affiliation to a certain faith or their religious indifference
shall be subject to a fine, the penalty of restriction of liberty or the penalty of
deprivation of liberty for up to two years.

Article 195

paragraph 1: Whoever maliciously interferes with a public performance of a


religious ceremony of a church or another religious association with regulated
legal status shall be subject to a fine, the penalty of restriction of liberty or the
penalty of deprivation of liberty for up to two years.

paragraph 2: The same punishment shall be imposed on anyone who mali-


ciously interferes with a funeral, mourning ceremonies or rites.

Article 196

Anyone found guilty of offending religious feelings by public calumny of an


object or place of worship is liable to a fine, restriction of liberty or a maximum
two-year prison sentence.

246. Reply by Ms Hanna Suchocka, Member of the Venice Commission, Poland.


Appendices

Broadcasting Act of 29 December 1992


Article 18, paragraph 2, states that programmes or other broadcasts shall
respect the religious beliefs of the public and especially the Christian system of
values.
1.a,b,c. The abovementioned legislation points to the recognition by Polish leg-
islators not only of freedom of speech, but also of the right to protection of the
religious aspect of individuals rights. The category of freedom of conscience
and confession is based on the principles of international human rights law. The
shape of the legal provisions is dependent on our historical tradition: for many
centuries Poland was a multi-religious state with a very strong role for the Catho-
lic Church.
2. The Polish Constitution contains general provisions that can be seen as a
basis for the prohibition of religious hatred.

Article 13 of the Polish Constitution Political pluralism


Political parties and other organisations whose programmes are based upon
totalitarian methods and the modes of activity of nazism, fascism and com-
munism, as well as those whose programmes or activities sanction racial or
national hatred, shall be forbidden.
289
Article 35 of the Polish Constitution Identity of national
and ethnic minorities
The Republic of Poland shall secure to Polish citizens belonging to national or
ethnic minorities the freedom to maintain and develop their own language, to
maintain customs and traditions and to develop their own culture. National and
ethnic minorities shall have the right to establish educational and cultural institu-
tions, and institutions designed to protect religious identity, and to participate in
the resolution of matters connected with their cultural identity.
The Polish Criminal Code contains these specific provisions:
Article 256 Promotion of fascism or other totalitarian system.
An offence is committed by anyone who promotes fascist or other totalitarian
systems of state or incites hatred based on national, ethnic, race or religious dif-
ferences or for reason of lack of any religious denomination. Subject to a fine,
the penalty of restriction of liberty or the penalty of deprivation of liberty for up
to two years.

Article 257 Publicly insulting a group or individual for national, ethnic


or racial reasons
An offence is committed by anyone who publicly insults a group within the popu-
lation or a particular person because of his national, ethnic, race or religious
Blasphemy, insult and hatred

affiliation or because of his lack of any religious denomination or for these rea-
sons breaches the personal inviolability of another individual. Imprisonment for
up to three years.

Article 119 Use of violence or threat because of national, ethnic, racial


or religious hatred
An offence is committed by anyone who uses violence or makes unlawful threats
towards a group of persons or a particular individual because of their national,
ethnic, political or religious affiliation, or because of their lack of religious
beliefs. Imprisonment for between three months and five years.

Article 118 Homicide or harm because of national, ethnic, racial


or religious hatred
An offence is committed by anyone who acts with intent to destroy in full or in
part any ethnic, racial, political or religious group, or a group with a different
perspective on life, commits homicide or causes a serious detriment to the health
of a person belonging to such a group. Penalty of the deprivation of liberty for a
minimum term of 12 years, the penalty of deprivation of liberty for 25 years or
the penalty of deprivation of liberty for life.

290
2.a,b,c. The existence of the aforementioned legal provisions can be to some
extent explained on the basis of different factors:
the recognition by Polish legislators not only of the freedom of speech, but also
of the right to protection of the religious aspect of individuals rights,
history (the Second World War, the Holocaust, communism),
the category of freedom of conscience and confession, and protection from
any form of attack caused by religious beliefs, is based on the principles of inter-
national human rights law,
the protected values of religious feelings and beliefs are of great importance
for the Catholic Church (over 90% of Polish society belongs to the Catholic
Church).
3. Generally we wont find any specific freedom-of-speech clause in the above-
mentioned provisions. However, such freedom-of-speech provisions do exist in
the Polish legal system. The main correlation between those two kinds of pro-
visions is based on the conviction that the freedom of one person is limited by
the freedom of other person, in this specific situation understood as a limitation
to blasphemy or religious insult. Not only freedom of speech, but also religious
feelings and beliefs are in the Polish legal system a value protected by law.
The main controversy appears to be caused by the interpretation of Article 196
of the Polish Criminal Code. The religious feelings of the different members of
one specific Church or confession are very diverse. The question is: whose level
Appendices

of religious sensibility should we treat as the average level the sensibility of a


group of fundamentalist or tolerant members?

Another controversy relates to the limit between freedom of speech (including


the criticism of religious rules, dogmas, ways of acting) and insulting religious
feelings. Lech Gardocki, President of the Supreme Court, opts for allowing an
unrestricted range of substantial analysis and criticism. However, he underlines
the existence of limits of forms in which the analysis and criticism are presented.
Those forms (of an action or a statement) must have the features of an insult. The
estimation, if the form is an insult, must appeal to the majority of public opinions
views in that aspect.

4. The existing legislation concerning the above-mentioned regulations seems


to be mostly adequate and appropriate. However, according to the European
Commission against Racism and Intolerance (ECRI) General Policy Recommen-
dation No. 7 on national legislation to combat racism and racial discrimination,
adopted by the ECRI on 13 December 2002, the law should penalise, inter alia,
public dissemination or public distribution, or the production or storage aimed at
public dissemination or public distribution, with a racist aim, of written, pictorial
or other material containing manifestations such as:

public incitement to violence, hatred or discrimination, public insults and defa-


mation or threats against a person or a grouping of persons on the grounds of 291

their race, colour, language, religion, nationality, or national or ethnic origin;

public expression, with a racist aim, of an ideology which claims the superior-
ity of, or which depreciates or denigrates, a grouping of persons on the grounds
of their race, colour, language, religion, nationality, or national or ethnic origin;

public denial, trivialisation, justification or condoning, with a racist aim, of


crimes of genocide, crimes against humanity or war crimes.

Another postulate concerns the change in the legal interpretation of Article 257
of the Polish Criminal Code. The postulated interpretation shall assure that not
only a member of insulted group, but also every Polish citizen could feel insulted
by hate speech contents and could bring an action at law.

The third element concerns the need of ratification by Poland of the Additional
Protocol to the Council of Europe Convention on Cybercrime, concerning the
criminalisation of acts of a racist and xenophobic nature committed through
computer systems, signed by Poland on 21 July 2003.

The general conclusion indicates that the most important aspect of the exist-
ing legislation (especially articles 256 and 257 of the Criminal Code) is a
great need of more effective application and exercise of the provisions already
existing.
Blasphemy, insult and hatred

5. The most important cases of alleged blasphemy, religious insult and/or incite-
ment to religious hatred in Poland that aroused a lot of public indignation and
debate and were prosecuted or convicted were these.

1. Nieznalska case

In December 2001, members of the League of Polish Families attacked the Polish
artist Nieznalska verbally in the Gdask venue where her Passion installation
was exhibited. The work, an exploration of masculinity and suffering, consisted
of a video close-up of the face of an exercising bodybuilder together with a
cross on which a photograph of male genitalia had been placed. Coupling the
cross with the genitalia was regarded as a violation of this provision of Arti-
cle 196 of the Criminal Code. In July 2003, the Provincial Court in Gdask
found Nieznalska guilty of offending religious feelings, a violation of the Art-
icle 196 ban on blasphemy